State Bank Of India vs M/S Athena Energy Ventures Private ...

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NATIONAL COMPANY LAW APPELLATE TRIBUNAL PRINCIPAL BENCH, NEW DELHI I.A. No. 1153 of 2021 In Company Appeal (AT) (Ins.) No. 633 of 2020 IN THE MATTER OF: State Bank of India ....Appellant/ Applicant Vs. M/s. Athena Energy Ventures Pvt. Ltd. .... Respondent

For Appellant: Mr. VM Kannan, Advocate. For Respondents: Mr. RS Shravan Kumar, Advocate.

ORDER

(Virtual Mode) 05.07.2021 The present I.A. No. 1153 of 2021 has been filed by the

Appellant-State Bank of India seeking directions in disposed Company Appeal

(AT) (Ins.) No. 633 of 2020. The Learned Counsel for the Applicant is heard.

Mr. RS Shravan Kumar, Advocate holding for Ramesh Babu Paluta, Advocate

appears on behalf of Respondent.

2. The Learned Counsel for the Applicant submits that by the Impugned

Order dated 24th November, 2020 this Tribunal had held that there could be

simultaneous CIRPs against the Principal Borrower as well as the Corporate

Debtor. It is stated in the operative order reads as under:

"The Appeal is allowed. Impugned Order passed by the Adjudicating Authority dated 4th March, 2020 is quashed and set aside. CP(IB)No. 466/7/HDB/2019 filed by the Appellant before Adjudicating Authority is restored to the file of the Adjudicating Authority. The Adjudicating Authority is directed to admit the Application CP(IB)No.466/7/HDB/2019 and pass further necessary Orders as per provisions of IBC. The Adjudicating Authority is requested to appoint the same IRP/RP as has been appointed in CP(IB)616/7/HDB/2018 in the CIRP 2

proceeding against M/s. Athena Chattisgarh Power Ltd. (Principal Borrower). The IRP/RP will act in accordance with law keeping observations in this Judgment in view."

3. The Learned Counsel submits that as per Orders of this Tribunal

Adjudicating Authority (NCLT, Hyderabad Bench) admitted CP (IB)

466/7/HDB/2019 on 16.04.2021 and appointed Mr. C. Bala Mouli IRP/RP,

as Mr. C. Bala Mouli was appearing as Resolution Professional for the

Principal Borrower-Athena Chattisgarh Power Ltd. It is stated that Mr. C Bala

Mouli filed application that now he has attained the age of 70 years and is

doubtful if he can continue to act as IRP. The Learned Counsel submits that

even otherwise M/s. Athena Chattisgarh Power Ltd. (Principal Borrower) is

now in Liquidation and that one Mr. Kumar Raajan has been appointed as a

Liquidator as per CoC Meeting dated 24th December, 2020. The Learned

Counsel submits that in such situation Mr. C. Bala Mouli cannot be

Resolution Professional for the Respondent-Athena Energy Ventures Pvt. Ltd.-

the Corporate Guarantor and the Principal Borrower- M/s. Athena

Chattisgarh Power Ltd. The Learned Counsel submits that Mr. C Bala Mouli

himself filed an Application before the Adjudicating Authority saying that he

would not be able to function as Resolution Professional but the Adjudicating

Authority expressed orally on 30.04.2021 that in view of the Orders passed by

this Tribunal it would not be possible for them to take another view.

4. We had in our Judgment dated 24th November, 2020 referred to

Paragraph 7.10 of the Report of the Insolvency Law Committee dated

February, 2020 and it had expressed that upon recovery of any portion of the

claims of a creditor in one of the proceeding, there should be a corresponding

I.A. No. 1153 of 2021 in Company Appeal (AT) (Ins.) No. 633 of 2020 3

revision of the claim amount recoverable by that creditor from the other

proceeding. In view of such Report of the Insolvency Law Committee we had

observed in Paragraph 16 of our Judgment as under:

"16.........It would be a matter of adjustment when the Creditor receives debt due form the Borrower/Guarantor in the respective CIRP that the same should be taken note of and adjusted in the other CIRP. This can be conveniently done, more so when IRP/RP in both the CIRP is same. Insolvency and Bankruptcy Board of India may have to lay down regulations to guide IRP/RPs in this regard."

It is clear that the object of our direction to request the Adjudicating

Authority to appoint same IRP/RP as has been appointed in the CIRP

proceeding against M/s. Athena Chattisgarh Power Ltd. (Principal Borrower)

was to ensure that there should be convenience of making corresponding

revisions when a particular claim amount is recovered. Now when it is stated

that Principal Borrower is under Liquidation and the CIRP against the

Corporate Guarantor Respondent Athena Energy Ventures Pvt. Ltd. is

pending, it plainly requires that the Resolution Professional who is working as

a Liquidator of the Principal Borrower should be appointed as Resolution

Professional for the Corporate Guarantor.

5. There was no harm even if the Adjudicating Authority had passed the

orders. However, as it is stated that the orders are not still passed. It would

be appropriate that the Adjudicating Authority immediately pass necessary

orders. We have seen CoC Minutes dated 22.12.2020 with regard to Athena

Chattisgarh Power Ltd. (Annexure A-4) Item 'C' "1" to appoint Kumar Rajan as

Liquidator (instead of RP-Mr. C. Bala Mouli).

I.A. No. 1153 of 2021 in Company Appeal (AT) (Ins.) No. 633 of 2020 4

6. Learned Counsel for the Respondent submits that the Respondent does

not have any objection with regard to appoint Resolution Professional

appointed as Liquidator of the Principal Borrower-M/s. Athena Chattisgarh

Power Ltd. to be the Resolution Professional of Athena Energy Ventures Pvt.

Ltd.-the Corporate Guarantor.

7. We dispose the present I.A. No. 1153 of 2021 with direction to the

Adjudicating Authority (NCLT, Hyderabad Bench) to immediately pass orders

on application filed by IRP-Mr. C. Bala Mouli dated 26.04.2021 (Annexure A-

3) and may appoint IRP the Professional working as Liquidator of the Principal

Borrower-M/s. Athena Chattisgarh Power Ltd. to be the IRP/Resolution

Professional of the Corporate Guarantor-Athena Energy Ventures Pvt. Ltd. in

CP (IB) No. 466/7/HDB/2019.

8. The Learned Counsel for the Applicant makes a request to exclude

period from 16th April, 2021 till now. As it appears that the Adjudicating

Authority appointed Mr. C. Bala Mouli, it would be appropriate for the

Applicant to seek appropriate relief before the Adjudicating Authority itself if

occasion so arises.

The Application is disposed, accordingly.

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

[Mr. V.P. Singh] Member (Technical)

Basant B./gc.

I.A. No. 1153 of 2021 in Company Appeal (AT) (Ins.) No. 633 of 2020