Shabeena Arshad & Anr vs Nilesh Sharma Resolution Professional ...

IN THE MATTER OF: Shabeena Arshad & Anr. ...Appellants Vs. Nilesh Sharma Resolution Professional Dream Procon Pvt. Ltd. ...Respondent Present: For Appellants: Mr. Pawan Shree Agarwal and Mr. Kartikay Mudgal, Advocates. For Respondent: Ms. Varsha Banerjee and Mr. Alok Dhir, Advocates for R-1. ORDER

(Through Virtual Mode) 17.11.2021: The Appellants have preferred the instant CA (AT) (Ins) No.

581 of 2021 as 'Aggrieved Persons' being dissatisfied with the impugned order

dated 02.03.2021 in I.A. No. 2771 of 2020 in CP No. IB -1771(ND)/2018

passed by the National Company Law Tribunal Division Bench, Delhi Bench -

III whereby and where under the Application filed by the Appellants was

dismissed.

While passing the impugned order of dismissal dated 02.03.2021 in I.A.

No. 2771 of 2020 in CP No. IB -1771(ND)/2018 the Adjudicating Authority, at

paragraph 8 observed the following:

"8. In the instant case, the petitioner has admittedly paid only an amount of Rs. 15,29,057/- to the Corporate Debtor, as is evident from books of account of the CD. This amount is duly supported by credible documentary evidence i.e. books of account and other accounting record of CD and verified by the RP. It is worthwhile to record that RP has to do the verification -2-

of claims strictly in accordance with accounting entries appearing in the CD's accounts. The payments claimed to have been made by petitioners in cash to the Mr. Rohit is not supported with any of the entries in the books account of the CD. The applicant himself admits in the application on hand that ex-directors are fraudulent. The independent legal remedies are available with the applicant to recover the amount, if any, from Mr. Rohit. But the CIR Process can't be used to perpetuate fraud. Accordingly, it is noted that RP has admitted the claim of Rs. 15,75,279/- after allowing interest @ 8% on Rs. 15,29,057/- which is rightly calculated and the same is not arbitrary in nature and therefore does not warrant any direction to RP from this Authority."

It must be borne in mind that Section 18 of the I & B Code 2016, under

the caption Duties of Interim Resolution Professional.- (1) The interim

resolution professional shall perform the following duties, namely:-

(a) Collect all information relating to the assets, finances and operations of

the corporate debtor for determining the financial position of the

corporate debtor, including information relating to-

(i) Business operations for the previous two years;

(ii) financial and operational payments for the previous two years;

(iii) list of assets and liabilities as on the initiation date; and

(iv) such other matters as may be specified;

(b) Receive and collate all the claims submitted by creditors to him,

pursuant to the public announcement made under Sections 13 and 15.

Company Appeal (AT) (Ins) No. 581 of 2021 -3-

Apart from that, he can verify the entries in the 'Books of Accounts' of the

'Corporate Debtor'.

In view of the facts that the 'Adjudicating Authority' had observed in the

impugned order at paragraph 8 that the applicant himself had admitted the

I.A. No. 2771 of 2020 that the Ex-directors were fraudulent and in fact, the

Payments claimed to be made by the Petitioners/Appellants for one Mr. Rohit

were not supported with any of the entries in the 'Books of Account' of the

Corporate Debtor then I.A. No. 2771 of 2020 filed by the Applicants/Appellants

seeking issuance of direction to the Resolution Professional of the Corporate

debtor accept the claim in full filed by the Applicants is not maintainable and

in fact the Adjudicating Authority had pertinently proceeded to observe in the

impugned order that RP had admitted the claim of Rs. 15,75,279/- after

allowing interest 8% on Rs. 15,29,057/- which was rightly calculated, which

was not arbitrary in nature and no direction can be issued to the Resolution

Professional etc .We are in complete agreement with the view taken by the

'Adjudicating Authority' in dismissing the application. Looking at from the

angle, the Appeal sans merits.

Company Appeal (AT) (Ins) No. 581 of 2021 -4-

In fine, the instant CA (AT) (Ins) No. 581 of 2021 is dismissed. No costs.

All connected Interlocutory Applications pending, if any are closed.

[Justice M. Venugopal] Member (Judicial)

[V.P. Singh] Member (Technical)

[Dr. Alok Srivastava] Member (Technical)

sr/gc

Company Appeal (AT) (Ins) No. 581 of 2021