Rupa Rajesh Sony vs Anil Kumar Liquidator Of Pearl Vision ...

IN THE MATTER OF: RUPA RAJESH SONY, R/O 2nd Ground Floor, Adish Building, 18th Road, Opposite Rustomjee, Khar (W) Mumbai - 400 052 Maharashtra ...Appellant. Versus 1. ANIL KUMAR LIQUIDATOR OF PEARL VISION PRIVATE LIMITED Registered Office: 303, Chandra GHS Limited, Golf Course Road, Plot No. 64, Sector - 55, Gurgaon, Haryana - 122011 Email- anil2566@gmail.com & pearl.cirp@gmail.com ...RESPONDENT NO.1

2. SH. PRABODH KUMAR TEWARI, Suspended Dirctor of Corporate Debtor Office: 1/5783, Balbir Nagar, Shahdra, New Delhi- 110032 Email- pkt301948@gmail.com & pk301948@gmail.com ...RESPONDENT NO.2

3. THE DEPUTY COMMISSIONER OF POLICE, BANDRA WEST, MUMBAI Office: Hill Rd, Santosh Nagar, Bandra West, Mumbai-400050 Email- dcpzone9-mum@mahapolice.gov.in ...RESPONDENT NO.3

For Appellant: Mr. Gautam Singh, Advocate. For Respondent: Ms. Mayuri Raghuvanshi, Advocate.

ORDER

(Virtual Mode)

22.06.2021 Heard.

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2. Learned Counsel for the Appellant submits that the Appellant is partner

of the Corporate Debtor namely Pearl Vision Pvt. Ltd. and that the

partnership was entered into on 17th July, 2017. The Appellant claims that

as per partnership deed executed between the Corporate Debtor and the

Appellant, the Appellant has been running a business of "Color Cafe Wellness

Solutions" from the property of the Corporate Debtor situated at Unit 202,

2ndFloor, Landmark Building Palinaka Road opposite ICICI Bank, above

HDFC Bank Bandra (West) Mumbai-400050. It is stated that the Liquidator

informed the Appellant with regard to the Corporate Insolvency Resolution

Process (CIRP in short) and Liquidation Proceedings and the Liquidator

wanted possession of the property but the Appellant has the partnership deed

in her favour according to which she has a right to be in possession of the

property for 9 years. The Learned Counsel for the Appellant submits that the

Adjudicating Authority has by the Impugned Order dated 10th June, 2021

passed orders directing the Commissioner of Police to assist in taking over the

possession of the property from the Appellant.

3. The Learned Counsel for the Appellant submits that the Appellant is

ready to vacate and handover the possession but time may be given for

vacating the premises.

4. Against this, Learned Counsel for the Liquidator is present and submits

that the CIRP started in 2018 and since then the Resolution Professional (who

is now liquidator) has been requesting the Appellant to handover the

possession of the property of the Corporate Debtor but the Appellant has not

been co-operating. It is stated that because of the non-co-operation of the

directors of the Corporate Debtor, the RP/Liquidator had earlier filed CA

1125/(PB)/2018 and subsequently Application was filed CA 380/2019

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against the present Appellant as well as the director of the Corporate Debtor.

It is stated that because of the non-co-operation, the stage has come where

Liquidation Order had to be passed and now even the period of liquidation is

coming to an end but the Appellant has been resisting to handover the

possession and Liquidator is unable to proceed with his job. The Learned

Counsel points out the order dated 21st January, 2020 (Page 163-166 of the

Appeal) where the Adjudicating Authority had directed the Appellant and the

Director of the Corporate Debtor to handover the possession of the premises

and also to handover the concerned documents. The Learned Counsel

submits that in the Application filed the Appellant was Respondent No. 1. The

Order dated 21st January, 2020 in CA 2670(PB)/2019 and CA 2671(PB)/2019

in (IB)-419(PB)/2018 passed by the Principal Bench of National Company Law

Tribunal, New Delhi reads as under:

"Order CA-2670(PB)/2019:-

An application has been filed by the liquidator under Regulation 9 of Insolvency and Bankruptcy Board of India (Liquidation Process), Regulations, 2016, seeking directions against the promoter/director-R1 and Statutory Auditor (R2) to provide certain documents as mentioned in the Annexure A/10 and Annexure A-11 respectively. On the last date of hearing, statutory auditor (R2) appeared before this Bench, but whereas today none appeared. Since, opportunity has already been given to both the respondents to respond to that application before this Bench, despite notice having been served upon respondents, they have neither provided documents as sought by the liquidator nor given their explanation about the records asked by the liquidator.

As to the application seeking co-operation from the directors, we do not think that there could be any defence either from the promoter/director or from the statutory auditor because the persons in the management of any company are deemed to have custody of the documents of the company and since IBC has categorically directed the promoter/directors to provide information and all the documents of the company and assets as well to the RP/Liquidator, as the case may be, for these two respondents having remained Company Appeal (AT) (Ins) No. 432 of 2021 4

insensitive to the reliefs sought by the liquidator, we hereby suggest that since the registered office is shown as 1/5783, Balbir Nagar, Shahdara, Delhi - 110032 and since this premise is within the ambit of Deputy Commissioner of Police, (North) Tis Hazari, Delhi he may be directed to provide assistance to the liquidator in extracting the records from these people. This direction is given by exercising jurisdiction given in Section 429 of the Companies Act, 2013.

Accordingly, this Application is allowed with liberty to the liquidator to approach this bench in the event any difficulty arise in getting information/records form the promoters/directors.

CA-2671(PB)/2019:-

An application has been filed by the liquidator under Regulation 9 of the Insolvency and Bankruptcy Board of India (Liquidation Process), Regulations, 2016, seeking directions against the respondents to handover physical possession of the property of the corporate debtor situated at Unit 202, 2nd Floor, Landmark Building Palinaka Road Opposite to ICICI Bank and above HDFC Bank Bandra (West) Mumbai - 400050 and to provide certain documents sought by the liquidator. On the last date of hearing, R- 1 appeared before this Bench but today none appeared. Since, opportunity has already been given to both the respondents to respond to this application before this Bench, despite notice having been served upon respondents, they have neither provided documents as sought by the liquidator, nor given their explanation about the records asked by the liquidator. As to the application seeking co-operation from the directors, we do not think that there could be any defence either from the promoter/director or from the statutory auditor because the persons in the management of any company are deemed to have custody of the documents of the company and since IBC has categorically directed the promoter/directors to provide information and all the documents of the company and assets as well to the RP/Liquidator, as the case may be, for these two respondents having remained insensitive to the reliefs sought by the liquidator, we hereby suggest that since the aforesaid property is shown as Unit 202, 2nd Floor, Landmark Building Palinaka Road Opposite ICICI Bank and above HDFC Bank Bandra (West) Mumbai - 400050 and since this premise is within the ambit of Deputy Commissioner of Police, Bandra West, Mumbai - 400050, he may be directed to provide assistance to the liquidator in extracting the records from these people. This direction is given by exercising jurisdiction given in Section 429 of the Companies Act, 2013.

Company Appeal (AT) (Ins) No. 432 of 2021 5

Accordingly, this application is allowed with liberty to the liquidator to approach this Bench in the event any difficulty arise in getting possession/information/records from the promoters/directors."

5. The Learned Counsel for Liquidator is submitting that in spite of such

orders, the Appellant did not co-operate and did not handover the possession.

It is also appearing from the record that the RP has terminated the said

partnership by a letter dated 26th March, 2019 (Appeal Page 88).

6. The Learned Counsel for Liquidator is submitting that the present

Impugned Order was passed by the Adjudicating Authority subsequent to the

above developments when the Liquidator had to again move the Adjudicating

Authority for help as the Appellant did not co-operate. As such according to

her, the claim of the Appellant that the Appellant was not given opportunity

is not correct.

7. Section 18(1)(f), Section 25(2)(a) and Section 35(1)(b) of IBC cast a duty

on the IRP/RP/Liquidator to take control and custody of the asset over which

the Corporate Debtor has ownership. Under Section 19 of IBC persons

associated with the management and affairs of the Corporate Debtor are

required to co-operate with the IRP/RP.

8. The position which is appearing form the present Appeal is that there

is a partnership shown which is not registered partnership. The Appellant has

not shown any document that the Director who signed the partnership deed

had authority of the Corporate Debtor or was authorized person to do so.

The further position accepted is that the property concerned is

residential premises in which Appellant is claiming to be running a Color Café

Wellness Solutions which is a business. The property is admittedly belonging

to the Corporate Debtor. In such situation, we find that there is no reason for

Company Appeal (AT) (Ins) No. 432 of 2021 6

us to interfere with the Impugned Order or to entertain the present Appeal as

there is no substance in the Appeal. Although Learned Counsel for the

Appellant is submitting that the Appellant may be given two days time to

vacate and shift machines, when it is stated that the Corporate Debtor and

the Appellant were in partnership with regard to the business concerned, it

would not be appropriate for us to accept the request that the Appellant wants

to remove certain machineries which the Appellant claims to be hers. It will

be for the Liquidator to see if there are assets not belonging to Corporate

Debtor and to deal with the same as per provisions of the IBC.

9. In the circumstances, where an Order of 21st January, 2020 to hand

over the possession is still not executed (which order does not appear to have

been challenged in the Appeal), we do not find any substance to interfere with

the Directions which have been given to Commissioner of Police to assist the

Liquidator to get the possession of the asset of the Corporate Debtor.

10. For the reasons mentioned above, we find no fault with Impugned Order

and we decline to entertain the Appeal or interfere in this matter as there is

no substance.

The Appeal is dismissed without admitting the same.

[Justice A.I.S. Cheema] The Officiating Chairperson

[Dr. Alok Srivastava] Member (Technical)

Basant B./gc.

Company Appeal (AT) (Ins) No. 432 of 2021