Rubina Chadha & Anr vs Amr Infrastructure Ltd

Rubina Chadha & Anr. ... Appellants

Versus

AMR Infrastructure Ltd. ... Respondent

WITH

Company Appeal (AT) (Insolvency) No. 12 of 2017

IN THE MATTER OF:

Sajive Kanwar ... Appellant

Versus

AMR Infrastructure Ltd. ... Respondent

Present: For Appellants: Shri Swapnil Gupta, Shri Angad Mehta and Ms. Shabdita Singh, Advocates

For Union of India: Shri Sanjay Shorey, Joint Director (Legal), Ministry of Corporate Affairs, New Delhi.

AND

Company Appeal (AT) (Insolvency) No. 50 of 2017

IN THE MATTER OF:

Mukesh Kumar & Anr. ... Appellants

Versus

AMR Infrastructures Ltd. .. Respondent 2

Present: For Appellants: Shri Krishnamaohan K. Menon and Shri Chetan Priyadarsh, Advocates

For Union of India: Shri Sanjay Shorey, Joint Director (Legal), Ministry of Corporate Affairs, New Delhi.

ORDER

2 1.07.2017 These appeals have been preferred by the appellants

against common Respondent, AMR Infrastructure Ltd.

2. Rubin Chadha and Another [Appellants in Company Appeal (AT)

(Insolvency) No. 8 of 2017] initially preferred a petition under Section

433(e) of the Companies Act, 1956 before the Delhi High Court. The

said petition was transferred pursuant to Rule 5 of the Companies

(Transfer of Pending Proceedings) Rules, 2016 notified on 7th

December, 2016 under sub-sections (1) and (2) of Section 434 of the

Companies Act, 2013 read with sub-section (1) of Section 239 of the

Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as 'I&B

Code').

3. On 24th March, 2017, the Appellate Tribunal doubted the power

of Central Government to frame rule under Section 239 of the I&B

Code for the purpose of exercising power under Section 434 of the

Companies Act, 2013 and referred the matter to the Secretary,

Ministry of Corporate Affairs, Government of India, New Delhi. 3

4. Shri Sanjay Shorey, Joint Director (Legal), Ministry of Corporate

Affairs, New Delhi, appeared and filed an amended Rule 5 notified by

the Central Government on 29th June, 2017 in exercise of powers

conferred by sub-sections (1) and (2) of Section 434 of the Companies

Act, 2013 read with sub-section (1) of Section 239 of the I&B Code.

Vide this Notification, earlier Rule 5 has been substituted, and

pursuant to which all petitions under Clause (e) of Section 433 of the

Companies Act, 1956, which are pending before a High Court, and

where petition has not been served on the respondent as required

under Rule 26 of the companies (Court) Rules, 1959 has been

transferred to the Bench of the Tribunal having territorial jurisdiction

to be dealt with in accordance with Part-IT of the I&B Code. The first

proviso stipulates that such transfer is subject to submission of all

information by Petitioner, other than information forming part of the

records transferred in accordance with Rule 7, required for admission

of the petition under Sections 7 or 8 or 9 of the I&B Code, as the case

may be, upto 15th July, 2017, failing which, the petition shall stand

abated.

5. What happened in the case of 'Rubina Chadha and Another' that

they filed a petition under Section 433(e) of the Companies Act, 1956

before the Delhi High Court, which was transferred to the Tribunal but

they could not satisfy the Learned Adjudicating Authority that they

come within the meaning of 'Financial Creditor' or 'Operational 4

Creditor'. The petition was accordingly, dismissed giving rise to the

appeal.

6. It has not been disputed that "Rubina Chadha and Another"

claimed to be the creditors of the respondent- AMR Instructure Ltd.

and we were required to decide as to whether the impugned order

passed by the learned Adjudicating Authority (National Company Law

Tribunal), Principal Bench, New Delhi is proper or not?

7. In one of the two other appeals, Sajive Kanwar [Appellant in

Company Appeal (AT) (Insolvency) No. 12 of 20171 claimed to be

'Financial Creditor'. However by the impugned order, the Learned

Adjudicating Authority has not accepted such claim and held that the

appellant is not a 'Financial Creditor' and dismissed the application.

8. On the other hand, in the case of 'Mukesh Kumar and Another'

[Appellants in Company Appeal (AT) (Insolvency) No. 50 of 2017], they

claimed to be 'Operational Creditor'. Their claim was also not accepted

by the learned Adjudicating Authority who dismissed the application

giving rise to the aforesaid two appeals.

9. The claim of the appellants in two appeals, 'Sanjiv Kumar' and

'Mukesh Kumar and another', is that they are the creditors of

Respondent-AMR Infrastructure Ltd. The respondent has not filed

any affidavit disputing the same.

10. In these appeals, we were required to determine the question as

to whether one or other appellant are the 'Financial Creditor' or

'Operational Creditor' or not, but such questions are not required to

be determined in these appeals in view of the development as taken

place during the pendency of the appeals.

11. One 'Nikhil Mehta and Sons' claimed to be 'Financial Creditor'

and filed an application under Section 7 of the I&B Code before the

Learned Adjudicating Authority (National Company Law Tribunal),

Principal Bench, New Delhi against the Respondent-AMR

Infrastructure Ltd. The said application was dismissed on the ground

that they are not 'Financial Creditors'. Being aggrieved 'Nikhil Mehta

and Sons' preferred Company Appeal (AT) (Insolvency) No. 07 of 2017

challenging the order passed by Learned Adjudicating Authority. This

Appellate Tribunal, after considering the case of 'Nikhil Mehta and

sons', held them to be the 'Financial Creditors' of AMR Infrastructure

Ltd. ('Corporate Debtor') and by judgement dated 21.07.2017, passed

the following order:

"27. For the reasons aforesaid, we set aside

the impugned judgement dated 23rd January 2017

passed by the learned Adjudicating Authority in

C.P. No. (ISB)-03(PB)/201 7 and remit the matter to

Adjudicating Authority to admit the application

preferred by appellants and pass appropriate order, if the application under Section 7 of the 'I &

B Code' is otherwise complete. In case it is found

to be not complete, the appellants should be given

seven days' time to complete the application as per

proviso to Section 7 of the 'I & B Code'.

28. The appeal is allowed with aforesaid

observations and directions. However, in the facts

and circumstances, there shall be no order as to

cost."

12. As pursuant to this Appellate Tribunal's order, the application

preferred by Nikhil Mehta & Sons is to be admitted, and Resolution

Process will be initiated, the question of initiation of further proceeding

under any of the provisions of I&B Code (Sections 7, 9 or 10) does not

arise. The appellants herein, whether they are 'Financial Creditor' or

'Operational Creditor' or 'Secured Creditor' or 'Unsecured Creditor', as

claim to be creditors are now entitled to file their respective claims

before the 'Interim Resolution Professional', as may be appointed and

the advertisement as may be published in the newspaper calling of

such application(s) with regard to resolution of 'Corporate Debtor'-

AMR Infrastructure Ltd. In such case, their claim should be

considered by the Interim Resolution Professional (IRP) and the

Committee of Creditors, in accordance with the provisions of the 'I&B 7

Code'. Therefore, no further order is required to be passed in these

appeals.

13. However, in case the application preferred by 'Nikhil Mehta and

sons' under Section 7 of I&B Code is not found to be complete or if

they fail to complete the defect, if any, as per proviso to Section 7 of

I&B Code and in case the said application of 'Nikhil Mehta and Sons'

is dismissed on such ground, in such case, as the appellants cannot

prefer any application before the Interim Resolution Professional, we

give liberty to the appellants to file 'interlocutory applications' in these

present appeals for recall of this order for their decision on merit.

14. All the three appeals stand disposed of with the aforesaid

observations. However, in the facts and circumstances of the cases,

there shall be no order as to costs.

[Justice S.J. Mukhopadhaya] Chairperson

[Balvinder Singh] Member (Technical)

I ng/