Naresh Kuamr vs Durgesh Kumar Sharma & Anr
- CitationCompany Appeal (AT) (Insolvency) No. 400 of 2021
Ratio decidendi
The rule this decision rests on
A third party who claims ownership of property shown as belonging to a corporate debtor, but who has produced only an allotment letter and receipt issued by a co-operative society more than twenty-five years earlier and no entry in any government record showing ownership, does not establish a prima facie case of title that warrants the appellate tribunal entering into the question of title in an appeal against admission of a Section 9 application. Where the claimed ownership rests on a power of attorney and a civil suit both executed or filed after the admission of the Section 9 application, such steps are not in consonance with Section 14 of the Insolvency and Bankruptcy Code, 2016, and do not assist the appellant in resisting admission on the ground of title. An appellate tribunal hearing a third party's challenge to admission of an insolvency application will not enter into allegations of collusion between the operational creditor and the corporate debtor in initiating the corporate insolvency resolution process where the appellant has not shown prima facie title, and the appellant may pursue any remedy in an appropriate forum.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
Naresh Kumar R/o Isarda House, Civil Lines, Jaipur, Rajasthan - 302006. Through his Power of Attorney Sukhbir Singh R/o 426, Nemi Sagar, Vaishali Nagar, Jaipur, Rajasthan Appellant
Versus
Durgesh Kumar Sharma Proprietor M/s Salasar Buildings 23, Tirth Nagar, Shyam Nagar, New Sanaganer Road, Jaipur - 302019. 1st Respondent
M/s North Rajasthan Buildwell Pvt. Ltd. Reg. Office at:- Shop No. G-7, Ground Floor, Pankaj Tower, Community Centre, Vikas Puri, New Delhi - 110018 Through Shailesh Dayal, Resolution Professional 2/6A, LGF, Jungpura - A, New Delhi - 110014 2nd Respondent
For Appellant: Mr. Mohit D. Ram, Advocate.
For Respondents: Mr. Chandra Shekhar Yadav and Ms. Gitnshi Arora, Advocates for R-1. Mr. Samar Bansal and Ms. Harsheen Madan, Advocates for RP.
Cont'd..../ 2
ORDER
(Virtual Mode)
11.06.2021: Heard Learned Counsel for the Appellant and Respondents on stage
of admission. This appeal has been filed by a third party claiming to have
ownership of the properties which are shown/stated to be of the Corporate Debtor.
2. Respondent No. 1 - Operational Creditor - Mr. Durgesh Kumar Sharma filed
application under Section 9 of the Insolvency and Bankruptcy Code, 2016 (for short
'I&B Code') before the Adjudicating Authority (National Company Law Tribunal)
New Delhi Bench VI (IB-512/(ND)/2020) claiming that Respondent No. 2 - the
Corporate Debtor 'M/s North Rajasthan Buildwell Pvt. Ltd.' had defaulted with
regard to operational debt of Rs.1,81,021/- with regard to the material supplied
and services rendered. The Adjudicating Authority after hearing the parties
admitted the application on 18.12.2020.
3. The present appal has been filed by one Mr. Naresh Kumar. The Appellant
states that this is a case of fraudulent and malicious initiation of insolvency
proceedings, which was done by Respondent No. 1 in collusion with Respondent
No. 2, a non-operative defunct company with no business, to usurp the right of the
Appellant in property at Jaipur.
4. According to the Appellant, he is member of 'Sanyukt Grah Nirman Sahakari
Samiti Ltd., Jaipur' and was allotted a plot of land bearing No. 243-244
admeasuring 516.66 square yards on 5th May, 1995 under Housing Scheme in
name and style of Dr. Rajendra Pradad Nagar A. The Appellant has filed copy of
Allotment Letter at Annexure A-2. According to the Appellant, he recently came
Company Appeal (AT) (Insolvency) No. 400 of 2021 3
to know on 29th June, 2009 that through forgery and vide a sham sale deed the
plot was got registered in the name of Respondent No. 2 - Corporate Debtor. The
Appellant claims that Respondent No. 2 was a defunct company and non-operative
and last AGM was held only on 26th September, 2016. It is claimed that the name
of the Corporate Debtor was struck off from the records of ROC by public notice on
29th October, 2019 (Annexure A-4). According to the Appellant, thereafter,
Respondent No. 1 sent notice under Section 8 of I&B Code to the Corporate Debtor
on 31st December, 2019 to the Registered Office and also sent email notice.
Appellant claims that the Respondent No. 2 responded to the email. According to
the Appellant, Section 9 application was filed on 15th January, 2020. It is claimed
that the Corporate Debtor admitted the claim made by Respondent No. 1 and
sought time to make payment. Thus, Appellant claims that there is collusion to
deal with the plot which Appellant claims belongs to him. It is argued that value
of the Plot is much more than the operational debt claimed.
5. Learned Counsel for the Resolution Professional, Advocate Mr. Samar Bansal
submits that the property was originally allotted to one Mrs. Saroj Jain on 20th
May, 1991 by 'Sanyukt Grah Nirman Cooperative Samiti'. It is stated that on 3rd
July, 2008 the ownership of Mrs. Saroj Jain was affirmed by Registrar in a Panch
Nirnay under Rajasthan Cooperative Society Act. Thereafter on 1st June, 2009 a
decree under Section 100 of Rajasthan Cooperative Society Act was passed in
favour of Mrs. Saroj Jain confirming her ownership. Finally, on 29th June, 2009,
Mrs. Saroj Jain sold the property to the Corporate Debtor vide a Registered Sale
Deed. The Learned Counsel further states that as the Resolution Professional he
Company Appeal (AT) (Insolvency) No. 400 of 2021 4
has verified the documents and found the title is of the Corporate Debtor. It is
stated that the present appeal has been filed only to delay the resolution process
which has started and resolution process is at the stage of submission of
Resolution Plans.
6. We have gone through the matter. Learned Counsel for the Appellant is
unable to show any documents showing entry in any Government Records prima
facie to show ownership of Appellant as claimed. The Appellant had stated that
the Appellant had executed Power of Attorney in favour of 'Sukhbir Singh' (at
Annexure A-3). Relevance of making such submission is not shown as the
document Annexed as A-3 shows that the Power of Attorney was executed on 7th
April, 2021 which is subsequent to admission of application under Section 9 of I&B
Code on 18th December, 2020. The Appellant further claims that he has filed a
Civil Suit for declaration of ownership of the property. Even this appears to be
done in April, 2021 which is again after admission of the Application under Section
9 in December, 2020 and thus not in consonance with Section 14 of the I&B Code.
Learned Counsel for the Appellant submit that the Appellant got information about
this Corporate Insolvency Resolution Process only on 10th April, 2021 when local
police informed him about the claim filed by the IRP. If Appellant had dispute of
title, it does not appear to have been raised anytime earlier. Copy of Company
Master Data (page 57of Appeal) shows the Corporate Debtor was incorporated on
20.05.2009 and as per Counsel for Resolution Professional Registered Sale Deed
in favour of Corporate Debtor was executed on 29.06.2009.
Company Appeal (AT) (Insolvency) No. 400 of 2021 5
7. At the instance of Appellant who has merely shown an Allotment Letter and
receipt issued by a Co-operative Society more than 25 years back, in appeal we do
not wish to get into decision of title. At the instance of such third party we decline
to enter into the allegations of collusion between Respondent No. 1 and Respondent
No. 2 with regard to initiation of Corporate Insolvency Resolution Process.
8. We decline to entertain the Appeal and it is dismissed. Appellant may pursue
appropriate remedy in appropriate forum.
[Justice A.I.S. Cheema] The Officiating Chairperson
[Mr. V.P. Singh] Member (Technical) Archana/gc.
Company Appeal (AT) (Insolvency) No. 400 of 2021
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