Mr. Dhananjay Krishnanath Gaikwad vs Mr Gaurav Adukia & Ors

Gaurav Ashok Adukia .... Respondent No.1 Resolution Professional for Tulijabhavani Cold Storage Pvt. Ltd. 809-810, 8th Floor, B-Wing, Trade World, Kamala Mill Compound, Lower Parel (West), Mumbai-400013.

ICICI Bank Ltd., .... Respondent No.2 A company incorporated under the Companies act, 1956 and licensed by the Reserve Bank of India under the Banking Regulation Act, 1949 and having its Registered office at ICICI Bank Tower, Near Chakli Circle, Old padre Road, Vadodara 390007 And Corporate Head Office at ICICI, Bank Towers, Bandra Kurla Complex, Bandra (East), Mumbai-400051.

Tuljabhavani Cold Storage Pvt. Ltd. .... Respondent No.3 A company incorporated under the Companies Act, 1956 and having its Registered Office At D-19, M I D C, Baramati, pune 413133.

1 Present:

For Appellant : Mr. Rahul Chitins and Mr. Aaditya Pande, Advocates.

For Respondents: Mr. Gaurav Ashok Adukia, Advocate for Respondent No. 1- RP.

Mr. Tushar Mudgil, Mr. Aakash Sherwal, Advocates for Respondent Nos. 1 & 3.

Ms. Smriti Churiwal, and Ms. Deepti Babel, Advocates for Respondent No. 2.

ORDER

(Through Virtual Mode)

23.09.2021 The appellant has filed this appeal against the

order dated 17.3.2021 passed by the Adjudicating Authority

(National Company Law Tribunal, Mumbai Bench Court III) in I.A.

No. 410 of 2021 in CP(IB) No. 775(MB)/2019 assailing the

permission granted by the Adjudicating Authority for exclusion of a

period of 146 days pursuant to the stay granted by the Hon'ble

NCLAT in Company Appeal (AT)(INS) 376/2020 from 04.03.2020 till

27.07.2020.

2. The parties were heard today. The Learned Counsel for

Appellant has stated that the Adjudicating Authority has erred by

wrongly interpreting the order of Hon'ble NCLAT given on 4.3.2020

2 in CA (AT)(INS) 376/2020 (pp 16-18, Appeal Paperbook), wherein it

was held as follows:-

"As the Appellant states that he wants to settle with the

Respondent No. 1, if the COC has yet not been constituted by

IRP, COC may not be constituted till the next date."

3. He has argued that this order is not a direction by the

Hon'ble NCLAT, but only a statement made by the Appellant before

the Hon'ble NCLAT and hence it does not mean that a stay was

granted in the constitution of CoC. To further buttress his

contention, the Ld. Counsel of Appellant has brought to our

attention the paragraph immediately following the aforesaid

paragraph in the Order dated 4.3.2020, wherein the Hon'ble NCLAT

has given directions for handing over the assets and records of the

Corporate Debtor to Interim Resolution Professional and taking

necessary actions for maintaining the Corporate Debtor as a 'going

concern'. He has claimed that the directions of the NCLAT are only

contained in this paragraph, and the paragraph immediately

preceding this paragraph (which is reproduced above)just records

the statement of the Appellant and does not contain any order

concerning stay to constitution of CoC.

4. The Learned Counsel for Appellant has thus argued that the

exclusion of time period from 4.3.2020 till 27.7.2020 in the CIRP

3 period permitted by the Adjudicating Authority has been given

erroneously which was not intended in the Order dated 4.3.2020 of

Hon'ble NCLAT.

5. We have perused the replies submitted by the Respondent

Nos. 1, 2 and 3 as well as written submissions of the parties.

6. Respondent Nos. 1 and 3 have submitted in their reply-

affidavit that the order dated 4.3.2020 of Hon'ble NCLAT in CA

(AT)(INS) 376/2020 are amply clear, wherein direction was given to

the Resolution Professional to desist from constituting the COC (if

not done so till then) so that the Appellant could give effect to the

settlement proposal. He has added that the stay order would be

clear if we peruse the order dated 23.7.2020 in CA (AT)(INS) No.

376/2020 (pp. 20-21 of Appeal Paperbook), which is as follows:-

"It is open to the Resolution Professional of 2nd Respondent to

constitute the 'Committee of Creditors' and to proceed further

in accordance with Law."

7. Respondents Nos. 1 and 3 have claimed that by careful

reading of the orders given by Hon'ble NCLAT on 4.3.2020 and

23.7.2020, it is clear that the order dated 23.7.2020 permitted the

Resolution Professional to go ahead and constitute the COC and

proceed in the Corporate Insolvency Resolution Process (CIRP) in

accordance with law as there was a stay granted earlier for

4 constitution of CoC. Therefore, exclusion of the time period of 146

days as granted by the Adjudicating Authority vide order dated

17.3.2021 in IA No. 410 of 2021 is proper and legal.

8. A reading of the portion relating to stay in constitution of

CoC in order dated 4.3.2020 (pg. 17, Appeal) makes it amply clear

that the Appellant had stated that he is in the process of settling

the matter with the Respondent ICICI Bank Ltd. and hence a stay

was granted on the constitution of CoC so that it could finalise the

settlement.

9. It is useful to also peruse the paragraph which relates to

directions for maintaining corporate debtor as 'going concern', in

the order dated 4.3.2020:-

"The Appellant/Promoters/Directors of the 'Corporate

Debtor' are directed to handover the assets and records of the

'Corporate Debtor' to the 'Interim Resolution Professional'

immediately (if not yet handed over). The 'Interim Resolution

Professional'/RP will ensure that the Company remains a

going concern and will take assistance of the (suspended0

Board of Directors and the officers/Director/employees. The

persons who are working will perform their duties including

the paid Directors. The person who is authorised to sign the

bank cheques may sign cheques only after authorisation of the

5 'Interim Resolution Professional' with counter signature of the

'Interim Resolution Professional/RP at the back side of the

cheques. Only in such case, the Bank shall release the

payment. The 'Interim Resolution Professional' will place this

order before the Banks, in which accounts of 'Corporate

Debtor' are maintained. The Bank Account(s) of the Corporate

Debtor be allowed to be operated through IRP/RP for day-to-

day functioning of the Company such as for payment of

Current Bills of the Suppliers, Salaries and Wages of the

employees'/workmen, electricity bills etc."

10. As can be seen, this paragraph contains directions for

keeping the Corporate Debtor as a 'going concern'. Therefore, we

do not find any strength in the argument of the Ld. Counsel of

Appellant that the orders/directors are only contained in this

paragraph which is reproduced above and it does not contain

reference to stay for constitution of CoC.

11. Another point of the Respondents is that later, by order dated

23.7.2020, the Hon'ble NCLAT gave permission to Resolution

Professional to constitute the CoC which implies that there was a

stay order in operation. We find this argument logical and worthy

of favourable consideration.

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12. Respondent No. 1 (Resolution Professional) has submitted

that the IRP received the order dated 23.7.2020 of Hon'ble NCLAT

on 27.7.2020 from ICICI Bank, which is member of the CoC.

Thereafter, as per directions contained in this order, the IRP

constituted the CoC on 29.7.2020.

13. Thus, we are of the clear opinion that the order passed by the

Adjudicating Authority in I.A. No. 410 of 2021 in CP(IB)

No.775(MB)/2019 regarding exclusion of period from 4.3.2020 till

27.7.2020 (146 days) pursuant to the stay imposed by Hon'ble

NCLAT in CA (AT)(INS) No. 376/2020is in accordance with law and

requires no intervention.

14. The appeal is, therefore, dismissed. No orders as to costs.

(Justice Jarat Kumar Jain) Member (Judicial)

(Dr. Alok Srivastava) Member (Technical)

/aks/

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