Mr.Nitin Chandrakant Naik& Anr vs Sanidhya Industries Llp & Ors

Nitin Chandrakant Naik & Anr. ...Appellants Versus Sanidhya Industries LLP & Ors. ...Respondents

Present: For Appellants : Mr. Kunal Godhwani, Ms. Kinjal Chadha, Advocates. For Respondents : Mr. Divyansh Dubey, Mr. Aditya Upadhyay, Advocates for R-1.

ORDER

(Hybrid Mode)

07.08.2025: Heard learned counsel for the Applicant and learned

counsel for the Appellant in Company Appeal (AT) (Ins) No.257 of 2020. We

had issued notice on 05.05.2025 in IA no.2556 of 2025 which IA has been

filed by the Applicant who was Successful Resolution Applicant. In the

application, Applicant has prayed for following reliefs:

"PRAYER

That the order be passed by the Hon'ble National Company Law Appellate Tribunal, Delhi Bench, directing

A. The Financial creditors of the Corporate Debtor namely The Yashwant Co-operative Bank Limited and The Chikhli Urban Cooperative Bank Ltd., being the Respondent no. 4 & 5, to

Cont'd.../ refund the Earnest money Deposit amount of Rs. 55,80,000/- (Rupees Fifty-Five Lakh Eighty Thousand only) together with interest till from the date of deposit until the actual date of refund, as deposited by the Applicant towards the Resolution Plan for the Corporate Debtor.

B. For Such other order as the bench may deem fit."

2. Learned counsel for the Applicant submit that Applicant has submitted

resolution plan in the CIRP of the Corporate Debtor in which Earnest Money

Deposit (EMD) of Rs.55,80,000/- was deposited. It is submitted that the plan

approval order was challenged by Promoters of the Corporate Debtor before

this Tribunal in Company Appeal (AT) (Ins.) No.257 of 2020 and 239 of 2021.

This Tribunal vide judgment and order dated 26.08.2021 allowed the appeal

and set aside the order of the Adjudicating Authority approving the resolution

plan. In Para 29 of the judgment this Tribunal directed as follows:

"29. Having heard parties in both these Appeals, as in Company Appeal (AT) (Insolvency) No. 257 of 2020, we have set aside the impugned order as well as Resolution Plan approved, the present impugned order in M.A 919/2020 would also not survive, we pass the following order:-

ORDER

The Appeal is allowed. Impugned order passed in M.A 919/2020 dated 28th January, 2021 is set aside. No order as to costs."

I.A. No.2556 of 2025 in Comp. App. (AT) (Ins.) No. 257 of 2020 2 of 5

3. The CoC aggrieved by the order of this Tribunal filed an appeal before

the Hon'ble Supreme Court which appeal was prayed to be withdrawn and by

order dated 02.09.2024, the Hon'ble Supreme Court permitted the Appellant-

CoC to withdraw the appeal i.e. Civil Appeal Nos.6620 - 6621 of 2021. Order

passed by the Hon'ble Supreme Court dated 02.09.2024 is as follows:

"O R D E R

1. Learned counsel for the appellants seeks permission to withdraw these appeals. Permission, as sought for, is granted.

2. The application for withdrawal of the earnest money deposited by the successful resolution applicant shall be taken up and disposed by the NCLAT as expeditiously as possible.

3. The appeals are dismissed as withdrawn.

4. Pending applications(s), if any, shall stand disposed of."

4. This application has been filed by the Applicant on 25.04.2025,

thereafter praying for withdrawal of the EMD. Notices were issued to the

Financial Creditors, as noted above. The Applicant was also permitted to

serve dasti notices to the Financial Creditors by order dated 04.07.2025. An

Affidavit of Service has been filed dated 02.08.2025 by the Applicant. In Para

2 following has been stated:

"2. That I submit that pursuant to the orders of this Hon'ble Court dated 04.07.2025, I have duly served

I.A. No.2556 of 2025 in Comp. App. (AT) (Ins.) No. 257 of 2020 3 of 5 dasti notice dated 10.07.2025 along with copy of IA No. 2556 of 2025 has been effected dasti on the Mr. Jitendra P Shinde, Administrator appointed by RBI for the above-named Respondent No. 4 at their registered address. The acknowledgement obtained in this behalf is annexed to this affidavit as proof of service."

5. Although the Financial Creditors have been served, as noted above, but

no one has appeared to oppose this application. Learned counsel for the

Promoter who was Appellant in the appeal before this Tribunal submits that

an application for withdrawal of EMD being I.A. No.2252 of 2021 was filed by

the Applicant before the Adjudicating Authority, which is pending.

6. Learned counsel for the Applicant submits that in view of the fact that

resolution plan itself was set aside, all actions including deposit of EMD has

become void and Applicant is entitled for refund of the EMD. Liberty was

granted by the Hon'ble Supreme Court in Para 2 of the order to the

Applicant/Successful Resolution Applicant to file an application for refund of

the EMD. Learned counsel for the Applicant further submitted that EMD was

never invoked by the Financial Creditors.

7. There is no appearance on behalf of the Financial Creditors to oppose

the application. We have no reason to disbelieve the statement and

submissions made by learned counsel for the Applicant. In view of the facts

as noted above, we allow the application directing the Respondent No. 4 and

5 to this application i.e. Yashwant Co-operative Bank Ltd. and Chikli Urban

I.A. No.2556 of 2025 in Comp. App. (AT) (Ins.) No. 257 of 2020 4 of 5 Co-operative Bank Ltd. to refund the Earnest Money Deposit of

Rs.55,80,000/- to the Applicant. Application is allowed accordingly.

[Justice Ashok Bhushan] Chairperson

[Barun Mitra] Member (Technical) Archana/nn

I.A. No.2556 of 2025 in Comp. App. (AT) (Ins.) No. 257 of 2020 5 of 5