Romi Datta vs S. Gurumoorthy & Anr

(Arising out of Order dated 15th December, 2017 passed by the Adjudicating Authority (National Company Law Tribunal), Mumbai Bench in C.P. No. 1378/IBC/NCLT/MB/MAH/2017))

IN THE MATTER OF:

Sh. Romi Datta ...Appellant

Vs.

S. Gurumoorthi & Anr. ...Respondents

Present: For Appellant: - Mr. Saurab Jain, Ms. Neha Gupta, Mr. Mustafa Alam, Mr. Simranjeet Singh and Mr. Siddharth Jain, Advocates.

For Respondents:- Mr. Divyanshu Sahay and Ms. Shradha Narayan, Advocates.

J U D G M E N T

SUDHANSU JYOTI MUKHOPADHAYA, J.

Mr. S. Gurumoorthi, filed application under Section 9 of the

Insolvency and Bankruptcy Code, 2016 ("I&B Code" for short) against

'M/s. Sahara Q Shop Unique Products Range Limited'- ('Corporate

Debtor'), which was admitted by the impugned order dated 15th

December, 2017 passed by the Adjudicating Authority (National

Company Law Tribunal), Mumbai Bench, Mumbai on the main ground

that there is default on the part of the 'Corporate Debtor'. Sh. Romi Datta, 2

Shareholder of 'M/s. Sahara Q Shop Unique Products Range Limited'-

('Corporate Debtor') has challenged the impugned order.

2. Learned counsel for the Appellant submitted that the impugned

order was passed ex-parte on 15th December, 2017 and suffers from

various infirmities.

3. According to him, the Hon'ble Supreme Court of India has

prohibited 'Sahara Group of Companies' to pay any amount to any

person. In an on-going Contempt (Civil) Petition 412 and 413 of 2012

titled as 'SEBI v. SIRECL & Ors.' and 'SEBI v. SHICL & Ors.' respectively,

the 'Sahara Group of Companies' vide a common interim application

bearing I.A No. 59-61/ 2015 had sought permission to clear the unpaid

salaries of employees. The Hon'ble Supreme Court by its order dated 19th

June, 2015, disposed of the said applications with the observation that

the prayers herein are deferred for the time being and would be

considered upon the deposit of the balance amount by the Appellant

therein in compliance of its judgment/ final order dated 31st August,

2012 at Para 11, Page 11-12 of the said order, therefore, according to

counsel for the Appellant, 'M/s. Sahara Q Shop Unique Products Range

Limited'- ('Corporate Debtor') being one of the 'Sahara Group Companies'

cannot pay any amount even to 1st Respondent- 'Operational Creditor'

and therefore, no default can be alleged.

Company Appeal (AT) (Insolvency) No. 94 of 2018 3

4. Learned counsel for the Appellant placed reliance on part of the

order dated 21st November, 2013 passed by the Hon'ble Supreme Court

in Contempt Petition No. 412-413 of 2012 and directed as follows:

"We are convinced that the order dated 28.10.2013

passed by this Court has not been complied within

its letter and spirit. In such circumstances, we

direct that the Sahara Group of Companies shall

not part with any movable and immovable

properties until further orders. We further direct

that all the alleged contemnors shall not leave the

country without the permission of this Court."

5. It is further submitted that 'M/s. Sahara Q Shop Unique Products

Range Limited'- ('Corporate Debtor') is a trading member and client of the

'Indian Bullion Market Association Ltd.' and as such it was supposed to

receive a sum of Rs. 226.96 crores from the 'National Spot Exchange Ltd.'

(NSEL), however, the 'Security Exchange Board of India' (SEBI) vide its

letter dated 26th September, 2013 to NSEL called upon it not to release

any amount due and payable to 'M/s. Sahara Q Shop Unique Products

Range Limited' and further directed it to hold the said amount in a

deposit account with any public sector bank bearing maximum rate of

interest till further instructions. Pursuant to the direction of the SEBI,

the 'Forward Markets Commission', Ministry of Finance had vide its letter

dated 23rd October, 2013 directed the NSEL to comply with the directions

Company Appeal (AT) (Insolvency) No. 94 of 2018 4

of SEBI vide their letter dated 26th September, 2013. The aforementioned

attachment of funds of the 'M/s. Sahara Q Shop Unique Products Range

Limited'- ('Corporate Debtor') was also confirmed by the 'Forward Markets

Commission' vide its letter dated 18th December, 2013.

6. Reliance has been placed on Status Report of SEBI filed before the

Hon'ble Supreme Court in Civil Appeal No. 9813 of 2011 whereby they

have confirmed of having taken steps to recover the amount from 'M/s.

Sahara Q Shop Unique Products Range Limited'- ('Corporate Debtor').

7. Learned counsel for the 1st Respondent submitted that the orders

dated 21st November 2013 and 19th June, 2015, relied upon by the

counsel for the Appellant, have no implication on the 'Corporate Debtor'

at hand because even after passing of the said orders, the 'Corporate

Debtor' has paid salary till September, 2014 until it voluntarily stopped

paying; as also Income Tax amounting to Rs. 153,03,53,020 paid on 2nd

November, 2015 and Provident Fund amounting to Rs. 7,88,73,464 paid

on 30th June, 2016.

Besides, 'Sahara Group Companies' have even settled claims

relating to 'Operational Debt' amounting to Rs. 20 crores as recently as

on 30th April, 2019. The final order dated 30th April, 2019 rendered by

the Adjudicating Authority, Mumbai Bench, in C.P. (IBC) 2430 (MB)/

2018 in re: "M/s. Delta Electro Mechanical Pvt. Ltd. v. M/s. Sahara

Hospitality Ltd." has been enclosed.

Company Appeal (AT) (Insolvency) No. 94 of 2018 5

8. It was further submitted that Contempt Petitions were preferred

before the Hon'ble Supreme Court for non-compliance of judgment dated

31st August, 2012 by 'Sahara India Real Estate Corporation Ltd.' and

'Sahara Housing Investment Corporation Ltd.'. resultantly, all orders that

have been passed by the Hon'ble Supreme Court in the Contempt

Petitions are to be read and understood in the context of these two

companies only.

9. It was further submitted that a bare and collective reading of the

orders passed by the Hon'ble Supreme Court on 17th July, 2013, 28th

October, 2013 and 21st November, 2013 as modified by the Three Judge

Bench on 4th June, 2014, make it clear that the 'Corporate Debtor' is

nowhere within the frame of the Contempt Petitions.

10. Having heard learned counsel for the parties and perused the

record, we find that except vague statement made by the Appellant, there

is nothing on the record to suggest that the Hon'ble Supreme Court has

passed specific order prohibiting 'M/s. Sahara Q Shop Unique Products

Range Limited'- ('Corporate Debtor') to release or pay any amount.

11. On the other hand, from the stand taken by the 1st Respondent and

order dated 30th April, 2019 passed by the Adjudicating Authority

(National Company Law Tribunal), Mumbai Bench, Mumbai in C.P. (IBC)

2430 (MB)/2018, it appears that another Group Company of Sahara

Group namely-- 'M/s. Sahara Hospitality Ltd.' has settled the claim of

Company Appeal (AT) (Insolvency) No. 94 of 2018 6

'M/s. Delta Electro Mechanical Pvt Ltd.'- ('Operational Creditor')

amounting to Rs. 20 Crores.

12. In view of the aforesaid factual aspect, we are not inclined to

interfere with the impugned order dated 15th December, 2017 on

purported ground that there is no default on the part of the 'Corporate

Debtor'.

In absence of any merit, the appeal is dismissed. No cost.

(Justice S.J. Mukhopadhaya) Chairperson

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

(Kanthi Narahari) Member(Technical) NEW DELHI 14th August, 2019

AR

Company Appeal (AT) (Insolvency) No. 94 of 2018