Ramesh Chander Agarwala vs State Bank Of India & Anr

IN THE MATTER OF: Ramesh Chander Agarwala ...Appellant

Versus State Bank of India & Anr. ...Respondents

Present: For Appellant: Mr. Saurabh Jain and Mr. Devashish Bharuka, Mr. Kaushik Poddar, Advocates

For Respondent: Mr. Mohit Sethi and Mr. Om Narayan Rai, Advocates for R-1. With Company Appeal (AT) (Insolvency) No. 231 of 2022

IN THE MATTER OF: Pankaj Lohariwal ...Appellant

Versus State Bank of India & Anr. ...Respondents

Present: For Appellant: Mr. Saurabh Jain and Mr. Devashish Bharuka, Mr. Kaushik Poddar, Advocates

For Respondent: Mr. Mohit Sethi and Mr. Om Narayan Rai, Advocates for R-1.

ORDER

(Virtual Mode)

22.04.2022: These two Company Appeals have been filed by two Personal

Guarantors of the same Corporate Debtor challenging the Order dated 08th 2

December, 2021 passed by the Adjudicating Authority in the separate

Applications filed by the State Bank of India under Section 95 of the Insolvency

and Bankruptcy Code, 2016 (hereinafter referred to as 'Code'). The Advance Copy

of the Applications filed under Section 95 of the Code was served on the Appellant

however Appellant was not given the limited notice and the Adjudicating

Authority by the Impugned Order appointed the Resolution Professional and

asked the Resolution Professional to submit a Report. Aggrieved by the said

Order, these two Appeals have been filed.

2. Mr. Devashish Bharuka, Advocate appearing for the Appellant in both

these Appeals contends that limited notice was not issued to the Appellant by

the Adjudicating Authority and the Report was already submitted by the

Resolution Professional subsequent to passing of the Order dated 08th December,

2021 he has placed reliance on a Judgment of this Tribunal in Company Appeal

(AT) Ins. No. 316 of 2021 in the matter of 'Ravi Ajit Kulkarni Vs. State Bank of

India through the Resolution Professional'.

3. Learned Counsel for the Respondent refuting the submissions of the

Learned Counsel for the Appellant submits that submission of the Report by the

Resolution Professional does not cause any prejudice. It is submitted that the

Adjudicating Authority has not recorded any finding of default as was the case

in Ravi Ajit Kulkarni's Case. It is submitted that Appellant has already appeared

before the Adjudicating Authority and the Adjudicating Authority has granted

time to the Personal Guarantors to submit an Objection vide Order dated 16th

March, 2022. Learned Counsel for the Respondent has also placed reliance on a

Company Appeal (AT) Ins. No. 230-231 of 2022 3

Judgment of this Tribunal in Company Appeal (AT) Ins. No. 284 of 2022 decided

on 22nd March, 2022 in the matter of 'Chandresh Jajoo Vs Siemens Financial

Services Private Limited & Anr'.

4. We have heard Learned Counsel for the parties and perused the record.

5. It is true that in Ravi Ajit Kulkarni's case this Tribunal has in paragraph

44 of the Judgment has laid down that limited notice by the Adjudicating

Authority also be given to the Personal Guarantors. In the preset case, although

no limited notice as contemplated in Ravi Ajit Kulkarni's Case was given but the

fact of the matter is that Personal Guarantors have appeared before the

Adjudicating Authority and have been granted time to file Objections. The

Grievance of the Appellant which has been canvassed before us is that Report

has already been submitted by the Resolution Professional without obtaining

any information from the Appellant. The Letter was issued by the IRP on 20th

December, 2021 asking the Appellant to submit the report but since the

Appellant has filed this Appeal in this Tribunal, details were not submitted to

the IRP. IRP subsequently has submitted a report which report has been taken

on record by the Adjudicating Authority and Adjudicating Authority has granted

time to file Objections to the Report.

6. In view of the facts of the present case, in the interest of justice, we give

an opportunity to the Appellant to submit a representation to RP along with

relevant materials which the Appellant want to communicate to the RP which he

may do so within two weeks from today. The IRP after considering the

submissions may submit an 'Additional Report' in continuation of his first Report

Company Appeal (AT) Ins. No. 230-231 of 2022 4

and the Adjudicating Authority before taking a decision for admission or

rejection of the Application as contemplated under Section 100 may consider

both the reports. After submission of the 'Additional Report', it shall be open for

the parties to request the Adjudicating Authority for granting time to file

Objection, if any.

We dispose of these two Appeals with the aforesaid directions.

[Justice Ashok Bhushan] Chairperson

[Dr. Alok Srivastava] Member (Technical)

[Ms. Shreesha Merla] Member (Technical)

Basant/nn Company Appeal (AT) Ins. No. 230-231 of 2022