Shree Ganesh Jewellery House (I) Ltd vs Abhishek Stock Broking Services Pvt. ...

IN THE MATTER OF: Shree Ganesh Jewellery House (I) Ltd. ...Appellant Vs. Abhishek Stock Broking Services Pvt. Ltd. & Ors. ...Respondents

Present: For Appellant: - None. For Respondents:- None.

ORDER

22.03.2018- This appeal has been preferred by the Appellant- Shree

Ganesh Jewellery House (I) Ltd. ('Corporate Debtor') against the order

dated 12th February, 2018 passed by the Adjudicating Authority

(National Company Law Tribunal), Kolkata Bench, Kolkata, whereby

and whereunder application preferred by the Respondents- Abhishek

Stock Broking Services Pvt. Ltd. and 3 Others ('Financial Creditors')

under section 7 of the Insolvency and Bankruptcy Code, 2016

(hereinafter referred to as "I&B Code") has been admitted, order of

'Moratorium' has been passed and 'Interim Resolution Professional' has

been appointed with certain directions.

2. In the case of "Innoventive Industries Ltd. v. ICICI Bank─ 2017

Contd/-.......

-2-

SCC OnLine SC 1025", the Hon'ble Supreme Court held that an appeal

under Section 61 by the 'Corporate Debtor' is not maintainable after its

admission and observed as follows:

"11. Having heard learned counsel for both the

parties, we find substance in the plea taken by

Shri Salve that the present appeal at the behest of

the erstwhile directors of the appellant is not

maintainable. Dr. Singhvi stated that this is a

technical point and he could move an application

to amend the cause title stating that the erstwhile

directors do not represent the company, but are

filing the appeal as persons aggrieved by the

impugned order as their management right of the

company has been taken away and as they are

otherwise affected as shareholders of the

company. According to us, once an insolvency

professional is appointed to manage the

company, the erstwhile directors who are no

longer in management, obviously cannot maintain

an appeal on behalf of the company. In the

present case, the company is the sole appellant.

Company Appeal (AT) (Insolvency) No. 78 of 2018 -3-

This being the case, the present appeal is

obviously not maintainable. However, we are not

inclined to dismiss the appeal on this score alone.

Having hard both the learned counsel at some

length, and because this is the very first

application that has been moved under the Code,

we thought it necessary to deliver a detailed law.

Entrenched managements are no longer allowed

to continue in management if they cannot pay

their debts."

3. When the aforesaid fact was brought to the notice of the learned

counsel for the Appellant, he prayed for time to file petition for

substitution of Mr. Abhishek Kumar, Director of the 'Corporate Debtor'

as Appellant in place of M/s. Shree Ganesh Jewellery House (I) Ltd. and

to transpose M/s. Shree Ganesh Jewellery House (I) Ltd. through

'Resolution Professional' as the 5th Respondent. However, in spite of the

time granted to the learned counsel for the Appellant on 7th March,

2018, till date no such application for substitution has been filed.

4. In the circumstances, as the appeal preferred by 'Corporate

Company Appeal (AT) (Insolvency) No. 78 of 2018 -4-

Debtor' through the (suspended) Board of Directors is not maintainable,

we have no other option but to dismiss the appeal. The appeal is

accordingly dismissed. No cost.

(Justice S.J. Mukhopadhaya) Chairperson

(Justice Bansi Lal Bhat) Member(Judicial) Ar/uk

Company Appeal (AT) (Insolvency) No. 78 of 2018