Mr Nipun Gupta & Anr vs Praveen Bansal Resolution ...

MS. PUJA GUPTA W/o Sh. Nipun Gupta, Aged about 44 years, R/o at: 20, Shri Ram Road Civil Lines, North Delhi, Delhi - 110 054 ...Appellants

Versus

1. PRAVEEN BANSAL Resolution Professional of Silverton Spinners Limited IBBI/IPA-001/IP-00164/2016-17/1179 J-347, Block J, Sarita Vihar, New Delhi - 110076 Email: silverton.spinners@pbinsolvency.com Pkbansal00@gmail.com

2. STATE BANK OF INDIA Samriddhi Bhawan, 1 Strand Road, Kolkata - 700 001 Email: sbi.00300@sbi.com

3. CENTRAL BANK OF INDIA Central Bank Bldg., 33, Netaji Subhash Road, Email: operkolzo@centralbank.co.in

4. CANARA BANK No. 7, Kyd Street, Kolkata 700 016 Email: mpmsroko12@canarabank.com ...Respondents

Present: For Appellant: Mr. Karan Valecha, Adv. For Respondent: Mr. Mohit Jolly, Adv. for R1 Mr. Iswar Mohapatra, Adv. for R4 Mr. Avinash Mohapatra, Adv.

Company Appeal (AT) (Ins.) No. 942 of 2022 2

JUDGMENT

Per: Justice Rakesh Kumar Jain:

This appeal is directed against the order dated 04.07.2022, passed by

the Adjudicating Authority (National Company Law Tribunal, Kolkata Bench)

by which an application bearing I.A.(IBC)/339/KB/2022 filed by the present

Appellant in CP No. (IB) 522/KB/2018 has been dismissed.

2. Shorn of unnecessary details, the facts given to us in the Court are that

an application under Section 7 of the Insolvency and Bankruptcy Code, 2016

(in short 'Code') read with Rule 4 of the Insolvency and Bankruptcy

(Application to Adjudicating Authority) Rules, 2016 (in short 'Rules') was filed

by the State Bank of India as a lead bank in the consortium of Central Bank

of India and Canara Bank for an amount of Rs. 151,19,70,185.24/- which

includes principal sum and interest at the contractual rate as on 31.12.2017.

The application was filed against the Silverton Spinners Limited, Kolkata

(Corporate Debtor). The application was admitted on 08.11.2019 and Praveen

Bansal was appointed as Interim Resolution Professional (IRP) and later on

confirmed as Resolution Professional (RP). The order of admission was

challenged by the Suspended Directors by way of an appeal bearing CA (AT)

(Ins) No. 1378 of 2019. In the said appeal, an interim order was passed on

29.11.2019 to the effect that "Interim Resolution Professional is directed not

to constitute Committee of Creditors, till next date of hearing, if not yet

constituted". However, the aforesaid appeal was finally dismissed on

20.09.2021 with the following two orders "(i) there is no substance in the

appeal, the appeal is dismissed. (ii) Interim order passed in this appeal dated

Company Appeal (AT) (Ins.) No. 942 of 2022 3

29.11.2019 does not survive. The period from 29.11.2019 till today will be

excluded for the purpose of Section 12 of IBC"

3. According to the Appellant, 1st meeting of the CoC was held on

07.10.2021. Thereafter, Form G was issued on 31.10.2021 followed by Form

A dated 11.11.2021. The Expression of Interest (EOI) was given by the

Appellant on 12.11.2021, which was acknowledged by the RP on 19.11.2021.

Provisional list of Prospective Resolution Applicants (PRA) was released on

26.11.2021 with the Appellant being the sole PRA. It is submitted that

Information Memorandum (IM) was given on 03.12.2021 and information

from the Virtual Data Room (VDR) of the Corporate Debtor was shared on

10.12.2021. Counsel for the Appellant has submitted that after receipt of the

information from the VDR, they wrote to the RP on 27.12.2021 that

information is deficient and is not inconformity with Regulation 36 of CIRP

Regulations. 2016. However, it is admitted that the last date for submission

of plan was 31.12.2021. The RP himself extended the period by three days for

submission of resolution plan on 03.01.2022.

4. On the other hand, Counsel appearing on behalf of the RP has

submitted that the period was extended till 30.01.2022, however, it is an

admitted fact that the 4th meeting of CoC took place on 07.02.2022 in which

decision was taken for initiation of liquidation of the Corporate Debtor.

Counsel for the RP has submitted that on 15.03.2022, the Appellant

requested for refund of earnest money paid on the ground that they are no

more interested in the process. The RP, vide its email dated 06.04.2022,

informed the Appellant that the earnest money has been refunded on

04.04.2022 and reference of transaction was also given. It is submitted that

Company Appeal (AT) (Ins.) No. 942 of 2022 4

despite that on 05.04.2022, the present application bearing I.A. No.

339/KB/2022 came to be filed by the Appellant in which prayers were made

for seeking permission to submit their resolution plan within 15 days,

extension of 90 days and exclusion of some period from the CIRP period so

that their resolution plan can be considered by the CoC.

5. We have given all these facts because of the reasons that these facts

have not been noticed by the Adjudicating Authority in the impugned order.

The application bearing I.A. No. 339/KB/2022 has simply been dismissed by

the Adjudicating Authority on the ground that it is misconceived because the

application for extension of time could have been filed only by the RP and not

by the Appellant (PRA). It is also noticed that even Counsel for the Appellant

did not put in appearance but in later part of the impugned order it is

observed that while the order was being dictated, the Counsel for the

appellant put in appearance.

6. In the backdrop of aforesaid facts and circumstances, Counsel for the

Appellant has submitted that though the application for extension of period

of 90 days might not have been within the purview of Appellant but the

Appellant could have asked for the permission of Adjudicating Authority to

submit the resolution plan within 15 days which could have been decided by

giving reasons. It is further submitted that the Appellant was though available

at the time of hearing but because of technical hitch his voice was not audible

to the bench as it was virtual hearing but once he was connected with the

hearing then opportunity should have been given to him at least to explain

the facts of the case.

Company Appeal (AT) (Ins.) No. 942 of 2022 5

7. On the other hand, Counsel for the Respondent has submitted that

there is no error in the impugned order because the period of extension is not

within the domain of the Appellant to seek and if the Appellant himself did

not choose to appear when the matter was being heard, there was no option

for the Adjudicating Authority but to pass the order.

8. It is further submitted that the Appellant had deposited the

participation money of Rs. 5 Lacs as a prospective resolution applicant which

was withdrawn by them on 15.03.2022 on the ground that they are no more

interested in the process and the said money was refunded on 04.04.2022,

whereas the Application was filed on 05.04.2022. It is thus submitted that

once the participation money was withdrawn and the Appellant himself

alleged that they have no interest in the resolution process, the Application at

their instance filed on 05.04.2022 was totally misconceived and has rightly

been dismissed.

9. We have heard Counsel for the parties and perused the record with their

able assistance.

10. There is no disputed about the facts mentioned hereinabove. The

precise question is as to whether the application, dismissed by the

Adjudicating Authority was maintainable even for seeking permission to

submit resolution plan within 15 days after withdrawing from the resolution

process?

11. In this regard, we may refer to email dated 15.03.2022 sent by the

Appellant and email dated 06.04.2022 sent by the Corporate Debtor which

are reproduced as under:

"From: Nipun Gupta nipungupta@gmail.com Sent: Tuesday, March 15, 2022 1:00Pm

Company Appeal (AT) (Ins.) No. 942 of 2022 6

To: Silverton Spinners silverton.spinners@pbinsolvency.com Subject: Re: Extension of last date for submission of resolution plan Dear Sir, Pls. refund our amount of earnest money paid, since we are now not interested in the process. Thanks Nipun gupta"

"From: Silverton Spinners silverton.spinners@pbinsolvnecy.com Sent: Wednesday, April 6, 2022 03:19:06 PM To: Nipun Gupta nipungupta@hotmail.com Subject: Re: Extension of last date for submission of Resolution Plan Dear Sir, This is to inform you that your participation money deposit has been refunded on 04.04.2022.

The reference number of the transaction is 1496681949. Let us know in case of any queries.

Tanks and Regards Adv. Gauri Sharan"

12. Once, the Appellant himself showed their disinclination in the

resolution process and requested for the refund of earnest money as back on

15.03.2022 and the same was returned on 04.04.2022 as has been mentioned

in the email dated 06.04.2022, it does not lie in their mouth to seek further

extension of time of 15 days to submit the resolution plan as they were no

more part of the process.

13. Thus, in our considered opinion, there is no merit in this appeal and

the same is thus dismissed. No costs.

[Justice Rakesh Kumar Jain] Member (Judicial)

[Mr. Kanthi Narahari] Member (Technical) New Delhi 09th December, 2022

Sheetal

Company Appeal (AT) (Ins.) No. 942 of 2022