Orbis Trusteeship Services ... vs Nobal Buildtech Private Limited

IN THE MATTER OF: Orbis Trusteeship Service Pvt. Ltd. ...Appellant

Versus

Nobal Buildtech Pvt. Ltd. ...Respondent

Present: For Appellant : Sr. Advocate Mr. Krishnendu Datta, Mr. Vatsala Rai, Ms. Anindita R. Chowdhury & Mr. Sushrut Garg, Advocates.

For Respondent : Mr. Usman Khan & Mr. Rishi Awasthi, Advocates.

ORDER

27.03.2023 This appeal is directed against the order dated

02.06.2022 passed by the 'Adjudicating Authority' (National Company Law

Tribunal, New Delhi Bench) in (I.B.) 143 (ND)/2022 by which an application

filed under Section 7 by the Appellant (Orbis Trusteeship Service Pvt. Ltd.)

as a Debenture Trustee on behalf of the Debenture Holders, for the

Resolution of a debt of Rs. 255,07,26,925/- as on 02.02.2020 against Nobal

Buildtech Private Ltd. (Corporate Debtor) has been dismissed on the ground

that the application filed at the instance of the Appellant was not

maintainable as the amount was not disbursed by the Appellant but by the

Debenture Holders.

2. Senior Counsel for the Appellant has drawn our attention to Form- 1

(available at Pg. 913, Volume-V) in which it is averred that Asia Pragati

Strategic Investment Fund is the Debenture Holder, Nobal Buildtech Private

Company Appeal (AT) (Ins.) No. 1071 of 2022 Limited is the Corporate Debtor and Kindle Infraheights Pvt. Ltd. had issued

the debentures. The Appellant is the Debenture Trustee for the benefit of the

Debenture Holders.

3. Since the issue involved in this case is in a very narrow compass that

is as to whether the application under Section 7, preferred at the instance of

the Appellant being the Debenture Trustee is maintainable or not, Counsel

for the Appellant has drawn our attention to a notification dated 27.02.2019

issued by the Ministry of Corporate Affairs as per which the Trustee

(including Debenture Trustee) can file an application on behalf of the

Financial Creditor. The said notification is reproduced as under:-

"MINISTRY OF CORPORATE AFFAIRS NOTIFICATION New Delhi, the 27th February, 2019

S.O. 1091(E)- In exercise of the powers conferred by sub- section (1) of section 7 of the Insolvency and Bankruptcy Code, 2016 (31 of 2016), the Central Government hereby notifies following persons who may file an application for initiating corporate insolvency resolution process against a corporate debtor before the Adjudicating Authority, on behalf of the financial creditor:-

(i) a guardian;

(ii) an executor or administrator of an estate of a financial creditor,

(iii) a trustee (including a debenture trustee); and

(v) a person duly authorised by the Board of Directors of a Company.

[F. No. 30/25/2018-Insolvency Section]

GYANESHWAR KUMAR SINGH, Jt. Secy."

Company Appeal (AT) (Ins.) No. 1071 of 2022

4. Counsel for the Respondent has been fair enough to concede about

the existence of the aforesaid notification.

5. Thus, in view of the aforesaid facts and circumstances, the issue is no

more res-integra because of the notification dated 27.02.2019.

6. In view of the aforesaid facts and circumstances the present appeal is

thus allowed. The 'impugned order' is set aside. The matter is remanded

back to the 'Adjudicating Authority' to decide the case on merits. The

parties are directed to appear before the 'Tribunal' on 1st May, 2023.

7. It is needless to mention that the Tribunal shall to decide the matter

between the parties expeditiously.

[Justice Rakesh Kumar Jain] Member (Judicial)

[Mr. Naresh Salecha] Member (Technical) Sim/RR

Company Appeal (AT) (Ins.) No. 1071 of 2022