Sarvesh Tiwari vs Asset Reconstruction Company (India) ...

IN THE MATTER OF: Mr. Sarvesh Tiwari .....Appellant Vs. Asset Reconstruction Company (India) Ltd. & Ors. ......Respondents

Present : For Appellant: Mr. Raktim Gogoi, Mr. Sarvaswa Chhajer, Mr. Kartikeya Singh, Mr. Shashank Singh, Mr. Vikas Kumar, Advocates For Respondents: Mr. Bishwajit Dubey, Ms. Ruchi Choudhary, Advocates

04.09.2019 - Having heard learned counsel for the Appellant and being

satisfied with the ground, delay of refiling the appeal is hereby condoned. I.A.

No. 2712 of 2019 stands disposed of.

The Appellant and employee of 'Neesa Leisure Limited' ('Corporate Debtor')

during 'Corporate Insolvency Resolution Process', filed an application before the

Adjudicating Authority ('National Company Law Tribunal') Ahmedabad Bench,

Ahmedabad u/s 65 of the Insolvency & Bankruptcy Code, 2016 ('I&B' Code, for

short) on the ground that the 'Corporate Insolvency Resolution Process' has been

initiated with fraudulently and malicious intention for any purpose other than

the Resolution of the Insolvency. ....contd. 2

The Adjudicating Authority by impugned order dated 26th April, 2019

having rejected the application the present appeal is preferred.

We have heard the learned counsel for the Appellant and perused the

record.

Section 65 of the 'I&B' Code reads as follows:-

65. (1) If, any person initiates the insolvency resolution process or

liquidation proceedings fraudulently or with malicious intent for any

purpose other than for the resolution of insolvency, or liquidation, as

the case may be, the Adjudicating Authority may impose upon such

person a penalty which shall not be less than one lakh rupees, but

may extend to one crore rupees.

(2) If, any person initiates voluntary liquidation proceedings

with the intent to defraud any person, the Adjudicating Authority

may impose upon such person a penalty which shall not be less

than one lakh rupees but may extend to one crore rupees.

In the present case, none of the Director or the shareholder of the

'Corporate Debtor' has alleged that the 'Corporate Insolvency Resolution Process

was initiated by 'Asset Reconstruction Company (India) Ltd.' ('Financial Creditor')

....contd.

3

with fraudulently and malicious intention for any purpose other than the

Resolution of the Insolvency. There is nothing on record to support the claim

of Appellant.

For the reason aforesaid, we are not inclined to interfere with the

impugned order, the appeal is accordingly dismissed.

[Justice S. J. Mukhopadhaya] Chairperson

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

[Kanthi Narahari] Member (Technical)

ss/sk

Company Appeal (AT) (Insolvency)No. 911 of 2019