Pradip Kumar Chaudhuri vs Dagcon (India) Pvt Ltd. Through Its ...

Pradip Kumar Chaudhuri ...Appellant Versus M/s Dagcon (India) Pvt. Ltd. Through its Resolution Professional Bimal Agarwal & Anr. ...Respondents

Present: For Appellant : Mr. Saurabh Jain and Ms. Bhavishya Singh, Advocates.

For Respondents: Mr. Prateek Kushwaha, Advocate for Resolution Professional.

Mr. Palzer Moktan, Advocate for Promoter Rana Sarkar.

Mr. Abhirup Dasgupta and Mr. Ishaan Duggal, Advocates for asset Reconstruction Company (India) Ltd.

ORDER

04.03.2020 Asset Reconstruction Co. (I) Ltd. moved an application under

Section 7 of the Insolvency and Bankruptcy Code, 2016 (for short the 'I&B Code')

against Ms/ Dagcon (India) Pvt. Ltd. ('Corporate Debtor'), which was admitted by

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

Kolkata.

2. During the 'Corporate Insolvency Resolution Process', the 'First Progress

Report' was filed by the 'Interim Resolution Professional', which was confirmed

by the 'Committee of Creditors' with 100% votes in its meeting held on 18th

December, 2019. In the said case, 'Resolution Professional' filed one application

Company Appeal (AT) (Insolvency) No. 241 of 2020 Page 1 of 4 CA(IB)1817/KB/2019 and the 'Adjudicating Authority' after hearing the parties

directed the Directors and Officers of the Corporate Debtor to cooperate with the

'Resolution Professional' and handover all books and accounts and required

information of the assets within seven days. The Adjudicating Authority allowed

the application with liberty to 'Resolution Professional' to approach local Police

Station, if it is not handed over and to ensure successful completion of 'Corporate

Insolvency Resolution Process'.

3. The Appellant moved this Appeal with the grievance that due to failure on

the part of the Directors and other Officers of the 'Corporate Debtor' in handing

over the records, the 'Resolution Professional' is not in a position to give

possession of the flats/ apartments/ shops, which have already been completed

and for which appropriate certificate can be obtained from the concerned

Authority.

4. This Appellate Tribunal issued notice on 'Resolution Professional' stating

as to why the Appeal be not disposed of in terms of decision of this Appellate

Tribunal in "Flat Buyers Association Winter Hills-77 vs. Umang Realtech

Pvt. Ltd. through IRP & Ors. - Company Appeal (AT) (Insolvency) No.926 of

2019" disposed of on 4th February, 2020 and "Rajesh Goyal vs. Babita Gupta

& Ors. - Company Appeal (AT) (Insolvency) No.1156 of 2019" disposed of on

5th February, 2020.

5. Mr. Prateek Kushwaha, learned Counsel appearing on behalf of the

'Resolution Professional submitted that the total records have still not been

handed over by the Promoters and their Officers. Mr. Palzer Moktan, learned

Counsel appearing on behalf of Mr. Rana Sarkar, the Promoter assures that the

Company Appeal (AT) (Insolvency) No. 241 of 2020 Page 2 of 4 Promoter will cooperate with the 'Resolution Professional' and will handover all

the records.

6. Mr. Abhirup Dasupta, learned Counsel appearing on behalf of Asset

Reconstruction Company (India) Ltd. submits that land in question was

mortgaged with the 'Financial Creditor', which now stands mortgaged to the

Asset Reconstruction Company (India) Ltd. He further submits that the decision

in "Flat Buyers Association Winter Hills-77" may not be applicable in the

present case as Dagcon (India) Pvt. Ltd is not a Real Estate Company. However,

such submission cannot be accepted, if the 'Corporate Debtor' is in the business

of selling the flats/ apartments/ shops to allottee(s). It is for the 'Resolution

Professional' to find out as to who is the allottee in whose favour the Promoter

Dagcon (India) Pvt. Ltd. has reached settlement/ Agreement or issued receipts

of payments for such allotment and any other documents in support of such

claim as may be produced. On receiving of such receipts, if it is found that the

flats/ apartments/ shops etc. are to be completed or is completed and ready to

be handed over, the 'Resolution Professional' is bound to proceed in accordance

with law and the guidelines issued in "Flat Buyers Association Winter Hills-

77" uninfluenced by the terms of agreement part of the said judgment. The

'Resolution Professional' is to ensure that the 'Corporate Debtor' remains a going

concern and if there are allottee(s), then it should be handed over to the allotte(s),

if the flats are complete. The Promoter is bound to cooperate with the 'Resolution

Professional' in respect of flats/ apartments/ shops, if any is completed. The

'Resolution Professional' may take help of their officers/ workmen etc. The

'Resolution Professional' and the 'Committee of Creditors' are also directed to

ensure that it should not reach the 'Liquidation' stage before handing over the

Company Appeal (AT) (Insolvency) No. 241 of 2020 Page 3 of 4 assets to the allottee(s). The Adjudicating Authority (National Company Law

Tribunal) will pass order after taking into consideration the relevant facts and

circumstances of the case and the development, following the observations made

by this Appellate Tribunal in "Flat Buyers Association Winter Hills-77" and

"Rajesh Goyal vs. Babita Gupta & Ors.". It is needless to say that the

'Resolution Professional' on receipt of rest of the consideration amount from the

allottee(s) will intimate the allottee(s) and on payment of amount for registration,

it will be open to the 'Resolution Professional' to get the premises registered in

favour of the allottee(s), after counter signature of the Promoter. Whatever the

amount remains on completion of the project, the 'Committee of Creditors' will

decide the matter of distribution.

7. The Appeal stands disposed of with the aforesaid observations and

directions.

[Justice S.J. Mukhopadhaya] Chairperson

[ Justice Bansi Lal Bhat ] Member (Judicial)

Ash/SR/RR

Company Appeal (AT) (Insolvency) No. 241 of 2020 Page 4 of 4