Mr. Anil Kohli vs Directorate Of Enforcement

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NATIONAL COMPANY LAW APPELLATE TRIBUNAL, Principal Bench, New Delhi Comp. App. (AT) (Ins) No. 389 of 2018 & I.A. No. 178 of 2023 IN THE MATTER OF: Anil Kohli, R.P. for DunarFoods Ltd. ...Appellant Vs. Directorate of Enforcement & Anr. ....Respondents For Appellant: Mr. Abhishek Anand, Mr. Nipun Gautam, Advocates

For Respondent: Mr. Zoheb Hossain, Mr. Vivek Gurmani Advocates for R-1. Ms. Vijaya Singh, Ms. Shruti Manchanda, Advocates for R-2/SRA

ORDER

Per : Justice Rakesh Kumar Jain: (Oral)

07.02.2023: This I.A No. 178 of 2023 is filed in Company Appeal (AT) (Ins)

No. 389 of 2018 by 'Monitoring Professional - DunarFoods Limited (Appellant)'

with a prayer to transpose Respondent No.2/Successful Resolution Applicant

(for short 'SRA') as 'Appellant' in the present Appeal.

2. In brief, the 'Adjudicating Authority' while admitting the application filed

under Section 7 'Insolvency and Bankruptcy Code, 2016' (in short 'Code'), at the

instance of 'State Bank of India', on 22.12.2017, initiated 'Corporate Insolvency

Resolution Process (in short 'CIRP'), in respect to DunarFoods Ltd (Corporate

Debtor).

3. Shorn of unnecessary details, the 'Resolution Plan' submitted by Amit

Gupta, was approved by the 'Adjudicating Authority' dated 26.11.2019. It is also

pointed out that the said order was further corrected vide order dated

27.01.2020.

Company Appeal (AT) (Ins) No. 389 of 2018 & IA No. 178 of 2023 2

4. The SRA filed 'Miscellaneous Application' bearing IA No. 661 of 2020

seeking extension of time for the purpose of payment, which was decided on

30.04.2021 and another date was given for the same. The said order was

challenged by the Respondent before this Tribunal by way of an appeal bearing

Company Appeal (AT) (Ins) No. 445 of 2021 which was disposed of vide Judgment

dated 10.06.2022 with the following directions:

"34. All this reflect to suggest one thing very clearly that the Resolution Professional and the representative of the CoC who are the Chairman/Members of the Monitoring Committee should assist the Resolution Applicant in sorting out the issues pending at various forums be it Excise Authority, Enforcement Directorate etc. As reflected by the Appellant and at the same time the Resolution Applicant will have to bear certain interest burden which should be the rate of interest of RBI Base rate for lending to banks + 2% margin as per the rate of interest applicable between 27.01.2020 to 15.11.2021 subject to a limit of 12% p.a."

5. The SRA was impleaded as Respondent No.2 by an order of this Tribunal

dated 20.10.2022. The said order read as under:

"20.10.2022: I.A. No. 1678 of 2022 is filed under Rule 31 of NCLAT Rules, 2016 to implead SRA as Respondent No. 2 in the present appeal.

Notice in the application was issued. Counsel appearing on behalf of the Non-applicant (RA) has submitted that she has no objection if the application is allowed and SRA is impleaded as a party.

Counsel for Respondent No. 1 has also not raised any serious issue about the impleadment of SRA. Consequently, the application is allowed and SRA is allowed to be impleaded as Respondent No. 2. Amended memo of parties is taken on record.

Since, we have allowed the application impleading SRA as Respondent No. 2, therefore, the Appellant is directed to provide complete set of memo of appeal to SRA within a week.

Counsel for SRA has submitted that after receiving copy of memo of appeal, time may be granted to file the Reply.

Company Appeal (AT) (Ins) No. 389 of 2018 & IA No. 178 of 2023 3

The newly added Respondent may file reply to the appeal on or before next date of hearing with advance copy to other side. Adjourned to 17th November, 2022."

6. The Counsel for the Applicant has submitted that this Tribunal has further

passed an order dated 17.11.2022 which also read thus:

"17.11.2022 Counsel for the Appellant seeks for an adjournment on the ground that Reply to the Appeal filed by Respondent No. 2 has recently been received and he intends to file Rejoinder. Additionally, he also submits that he would file an Application for transposing Respondent No. 2 as the Appellant. On the request of the Respondent No. 2 the Appeal is adjourned to 16th January, 2023. Counsel for the Appellant to submit amended Memo of Appeal."

It is submitted that in view of this order, the present Application has

been filed.

7. Counsel for Applicant has submitted that in view of Section 32A of the

Code, the Respondent No.2 may be transposed as an Appellant. On the other

hand, Counsel appearing on behalf of SRA, already impleaded as Respondent

No.2, has submitted that the SRA is already supporting the Appellant in the

present appeal. Counsel appearing on behalf of the ED has submitted that this

application is totally misconceived because the present Applicant/Appellant

cannot seek transposition of a Respondent as an Appellant until and unless the

said application is filed by Respondent No.2 himself/itself.

8. We have heard counsel for the parties and after perusal of record, are of

the considered opinion that the present Application is totally misconceived,

especially when the SRA, already arrayed as Respondent No.2, is supporting the

case of the Appellant and that no application is filed by Respondent No.2 for

getting itself transposed as 'Appellant'. If any such application is required to be

Company Appeal (AT) (Ins) No. 389 of 2018 & IA No. 178 of 2023 4

filed it should have come from the SRA itself, but insofar as the Applicant is

concerned, it has no locus standi.

9. In view of the facts and circumstances of the case, the present application

is found not maintainable and the same is hereby dismissed. No costs.

[Justice Rakesh Kumar Jain] Member (Judicial)

[Naresh Salecha] Member (Technical) Raushan/RR

Company Appeal (AT) (Ins) No. 389 of 2018 & IA No. 178 of 2023