Naresh Kumar Sharma vs Oriental Bank Of Commerce & Anr

(Arising out of Order dated 11th September, 2018 passed by the Adjudicating Authority (National Company Law Tribunal), New Delhi, Bench III in C.P.IB-22/ND/2018)

IN THE MATTER OF: Sh. Naresh Kumar Sharma .....Appellant

Vs. Oriental Bank of Commerce & Anr. ......Respondents

Present: For Appellant: Mr. Rakesh Kumar, Mr. Aashish Khattar, Ms. Shivali Singh and Ms. Chetna Bisht, Advocates.

For Respondents: Mr. Amandeep Singh and Ms. Niti Jain, Advocates for R-1. Mr. Abhishek Anand, Mr. Tushar Tyagi and Mr. Anant A. Pavgi, Advocates for R.P.

J U D G M E N T

SUDHANSU JYOTI MUKHOPADHAYA, J.

The Respondent- 'Oriental Bank of Commerce' filed an application

under Section 7 of the Insolvency and Bankruptcy Code, 2016 ("I&B

Code" for short) for initiation of the 'Corporate Insolvency Resolution

Process' against 'M/s. Shekhar Resorts Ltd.'- ('Corporate Debtor'). The

Adjudicating Authority (National Company Law Tribunal), New Delhi, 2

Bench-III, having admitted the application, the appeal has been

preferred by the Director/ Shareholder of the 'Corporate Debtor'.

2. Learned counsel appearing on behalf of the Appellant submitted

that the 'Corporate Debtor' was not wilful defaulter which has been

accepted by the Respondent- 'Oriental Bank of Commerce' itself in its

notice dated 19th June, 2016.

3. The Respondent- 'Oriental Bank of Commerce' had shown a total

default of debt of Rs.19,67,64,134/- including interest out of which the

Appellant has paid Rs.15.88 Crores approximately till March, 2018.

4. It was submitted that the Appellant undertakes to make the

payment of the rest of the amount within six months from the date of

order as may be passed by this Appellate Tribunal.

5. Learned counsel for the Appellant also raised the question of

maintainability of petition under Section 7 of the 'I&B Code' filed by the

Respondent- 'Oriental Bank of Commerce'.

6. It was also submitted that the Respondent- 'Oriental Bank of

Commerce' initially issued a notice under the 'SARFAESI Act, 2002' and

the Appellant filed Securitization Application No. 539/2016 before the

Debt Recovery Tribunal, Lucknow, U.P. In the said case, the

Respondent- 'Oriental Bank of Commerce' took plea before the Debt

Recovery Tribunal that "in case the Applicant submits any restructuring

Company Appeal (AT) (Insolvency) No. 628 of 2018 3

proposal within 15 days from today, the Respondent Bank will consider

the same as per guidelines of the Reserve Bank of India. He submits that

in pursuance of Demand Notice, Possession Notice and the Sale Notice,

the Respondent Bank is not going to take any action against the

Applicant".

7. It was further submitted that in spite of the said undertaking

given before the Debt Recovery Tribunal, the application under Section

7 was filed by the Bank.

8. Learned counsel for the Appellant submitted that the 'National

Company Law Tribunal, New Delhi' has no territorial jurisdiction as the

properties of the 'Corporate Debtor' is situated at State-U.P., of which

'National Company Law Tribunal, Allahabad' has jurisdiction.

9. However, from the appeal, we find that the Appellant has shown

the Registered Office of the 'Interim Resolution Professional' of the

'Corporate Debtor' at "J 6A, Kailash Colony, National Capital Territory

of Delhi, New Delhi- 110048".

10. In the impugned order dated 11th September, 2018, the

Registered Office of the 'Corporate Debtor' has been shown at "J-1817,

Chittaranjan Park, New Delhi- 110019".

11. The Registered Office of the 'Corporate Debtor' being situated at

"New Delhi", we hold in terms of Section 60(1) the 'National Company

Company Appeal (AT) (Insolvency) No. 628 of 2018 4

Law Tribunal, New Delhi' has jurisdiction and not the 'National

Company Law Tribunal, Allahabad' where properties of the 'Corporate

Debtor' may be situated. Therefore, the submissions made by the

Appellant relating to maintainability of the application under Section 7

before the Adjudicating Authority (National Company Law Tribunal),

New Delhi is rejected.

12. It was next submitted that the person who filed application under

Section 7 was provided with Authority Letter for the first time on 5th

June, 2018. Therefore, according to the Appellant, the petition under

Section 7 was not maintainable as on the date of filing having not

presented by any Authorised person.

13. From the record, we find that the application under Section 7 in

Form-1 was submitted by 'Cluster Monitoring Head RRL, East & Central

U.P Agra' of the Bank who is also the clustering head of recovery. The

said 'Cluster Monitoring Head' being the head of recovery for the Bank,

we hold that the application under Section 7 in Form-1 at his instance

was maintainable.

14. For the reasons aforesaid, we are not inclined to interfere with the

impugned order dated 11th September, 2018. However, this order will

not come in the way of the Appellant to settle the matter under Section

12A of the 'I&B Code', if no 'Resolution Plan' has been approved by the

'Committee of Creditors'/ Adjudicating Authority.

Company Appeal (AT) (Insolvency) No. 628 of 2018 5

The appeal is dismissed with aforesaid observations. No costs.

(Justice S.J. Mukhopadhaya) Chairperson

(Justice A.I.S. Cheema) Member(Judicial)

(Kanthi Narahari) Member(Technical) NEW DELHI 18th September, 2019

AR

Company Appeal (AT) (Insolvency) No. 628 of 2018