Ravi Kant Gupta & Ors vs Alpfly Pvt. Ltd. Through Irp

Ravi Kant Gupta & Ors. ...Appellants Versus Alpfly Pvt. Ltd. through IRP ...Respondent Present: For Appellant : Mr. Mohit Chaudhary and Ms. Garima Sharma, Advocates For Respondent : Mr. Anurag Sharma, IRP Mr. Gunjan Mittal, Advocate

ORDER

14.05.2019 This appeal has been preferred by 'Ravi Kant Gupta & Others'

(Promoters) of 'M/s. Alpfly Private Limited (Corporate Debtor and Corporate

Applicant). The 'Corporate Applicant' against orders dated 16th October, 2018

and 12th November, 2018 passed by the Adjudicating Authority (National

Company Law Tribunal), New Delhi (Bench III) whereby in absence of a

'Financial Creditor', the Adjudicating Authority observed that since the main

petition seeking the 'insolvency resolution process' had been moved by the

'Corporate Debtor' and in absence of any 'Financial Creditor', the cost of payment

of fees in relation to the Authorised Representatives appointed, as well as to

defray the costs of 'Resolution Professional' the same shall be borne by the

'Corporate Debtor'. The said order has been clarified by the subsequent order

dated 12th November, 2018 wherein it was also observed that the 'Corporate

Debtor' is a legal entity and without the sanction of the Board could not have

initiated the process and for necessary compliance the corporate veil is required

to be lifted and see the legal persons behind the debtor company which has filed

the application based on which the Tribunal has initiated the 'corporate 2

insolvency resolution process'. Learned counsel appearing on behalf of the

Appellant submitted that the observation made in the last paragraph of the order

dated 16th October, 2018 will affect the 'Promoter', as the 'Corporate Debtor' has

filed the application under Section 10 of the 'Insolvency & Bankruptcy Code,

2016' (for short, the 'I&B Code'). Further, according to him, the money is not

available with the 'Corporate Debtor' and in absence of money with the

'Corporate Debtor', the 'corporate insolvency resolution process' is required to be

funded by Section 10 petitioner has been directed.

2. Mr. Anurag Sharma, Interim Resolution Professional, who appears in

person, submits that pursuant to the advertisement, no claim has been filed by

the creditors, only one water supplier has filed the claim beyond the period which

is also to be noticed. He further submits that the 'Corporate Debtor' was dealing

with the business of providing 'air tickets' and those who purchase the plans

pursuant to '7 different plans' have also filed certain applications, though which

are not in format but they are treated to be claims.

3. On the direction of this Appellate Tribunal, the Appellants have enclosed

the copy of the "Plans", which includes - 'Star Plan'; 'P-One Plan'; 'P-You Plan';

'Couple Plan'; 'P-Two Plan' and 'Blackout Destinations' have been shown therein

and the charges of each plan have also been shown for '10 Air tickets'.

4. There is nothing on record to suggest that any decision was taken by the

Annual General Meeting of the 'Corporate Debtor' to file an application under

Section 10 of the I&B Code.

5. There have been 'default' against the purchasers of the Plans, who

otherwise do not come within the meaning of 'Financial Creditors' or 'Operational

Creditors'. However, the Adjudicating Authority having seen some discrepancies

Company Appeal (AT) (Insolvency) No. 782-783 of 2018 3

raised doubt about the genuineness of the 'Corporate Debtor' and the application

as has been filed. The 'Resolution Professional' also claims that financial

irregularities have also been committed by the 'Corporate Debtor'.

6. In the circumstances, while we are of the opinion that the order regarding

expenses of 'Resolution Professional' was not required to be determined at this

stage, we are also of the view that considering the record, the Adjudicating

Authority should also seen whether the application under Section 10 of the I&B

Code was filed with fraudulently or with malicious intention for any purpose

other than for the resolution of the insolvency or liquidation as defined under

Section 65 of the I&B Code and if so necessary, it may request the Central

Government for reference to the SFIO under Sections 212 and 213 of the

Companies Act, 2013 and other provisions of the Insolvency & Bankruptcy Code

including Part II Chapter VII wherein 'Offences and Penalties' has been

prescribed.

7. As the doubt has been raised, we are not inclined to interfere with the

impugned orders. However, this will not come in the way of the Adjudicating

Authority to proceed with the matter in accordance with the law. The appeal

stands disposed of with the aforesaid observations.

[Justice S.J. Mukhopadhaya] Chairperson

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

[ Kanthi Narahari ] Member (Technical) /ns/gc

Company Appeal (AT) (Insolvency) No. 782-783 of 2018