Surpreet Singh Suri vs Pragati Impex India Private Limited & ...

NATIONAL COMPANY LAW APPELLATE TRIBUNAL, PRINCIPAL BENCH, NEW DELHI Company Appeal (AT) (Insolvency) No.1431 of 2022 (Arising out of Order dated 05.08.2022 passed by the Adjudicating Authority (National Company Law Tribunal), New Delhi (Court-II) in IB-662(ND)/2021)

IN THE MATTER OF: Surpreet Singh Suri, 192-B, Sainik Farm, Khanpur, South Delhi, Delhi-110062. .... Appellant Vs 1. Pragati Impex India Private Limited, Flat No.216-B, Second Floor, Devika Tower, 6, Nehru Place, New Delhi - 110019. 2. M/s. Vistar Constructions Private Limited C-23, Greater Kailash Enclave, Part - I, New Delhi - 10048. 3. Mr. Amit Agarwal, Resolution Professional of M/s. Vistar Constructions Private Limited, H-63, Ground Floor, Vijay Chowk, New Delhi, Delhi-110092. .... Respondents

Present:

For Appellant: Mr. Vaibhav Gaggar, Mr. Utkarsh Singh, Mr. Turab Ali Kazmi, Mr. Ashit Kapoor, Mr. Dev Karn Singh and Ms. Debojyoti Sen Gupta, Advocates.

For Respondent: Mr. Abhijeet Sinha, Mr. Sohit Chaudhary and Mr. Ravi Kishore, Advocates for R-1.

Mr. Pankaj Agarwal and Mr. Shashwat Srivastava, Advocates for RP.

JUDGMENT

ASHOK BHUSHAN, J.

This Appeal has been filed by the suspended Director of the

Corporate Debtor challenging the order dated 05.08.2022, by which order

Company Appeal (AT) (Insolvency) No. 1431 of 2022 1 Section 7 Application filed by the Financial Creditor - Respondent No.1 has

been admitted.

2. Brief facts of the case necessary to be noticed are:

(i) The Financial Creditor extended a loan to the Corporate Debtor

on 31.05.2018, consequent to which an amount of

Rs.1,75,81,442/- was transferred to the Corporate Debtor by

Bank transfer.

(ii) According to the Financial Creditor, the loan was extended for

a period 18 months and 31.11.2019 was due date for

repayment of the debt. The Corporate Debtor failed to make

payment, the Financial Creditor filed Section 7 Application

dated 01.10.2021 claiming debt and default of total amount of

Rs.3,87,43,490. The Application was filed after sending a

notice to the Corporate Debtor.

(iii) The Adjudicating Authority issued notice on Section 7

Application to the Corporate Debtor by order dated

08.11.2021. The Financial Creditor also sent a notice to the

Corporate Debtor on its email address as well as by Speed Post,

which was duly served on the Corporate Debtor. No one

appeared on behalf of the Corporate Debtor on several dates.

The Adjudicating Authority on 10.05.2022 proceeded ex-parte

against the Corporate Debtor and after hearing on 07.07.2022,

order was reserved and by order passed on 05.08.2022,

Section 7 Application was admitted.

Company Appeal (AT) (Insolvency) No. 1431 of 2022 2

(iv) Aggrieved by the order impugned, suspended Director of the

Corporate Debtor has filed this Appeal.

3. We have heard Shri Vaibhav Gaggar, learned Counsel for the

Appellant and Shri Abhijeet Sinha, learned Counsel appearing for

Respondent No.1.

4. The learned Counsel for the Appellant challenging the order submits

that order passed by the Adjudicating Authority is ex-parte to the Appellant.

The notice on the Application was never served on the Corporate Debtor

and the Appellant came to know about the order when the copy of the

Company Petition was forwarded by one of the Director of M/s. Rimrock

Infratech Pvt. Ltd. stating that the same was served on them and it was

only after receipt of the email on 03.09.2022, the Appellant became aware

of the Company Petition filed before the NCLT. It is submitted that on the

email address of the Corporate Debtor is records3c.infra@gmail.com, no

notice has been served and the notice, which was sent by Speed Post was

received by another Company, i.e., M/s. Rimrock Infratech Pvt. Ltd. It is

further submitted that loan Agreement as claimed by Financial Creditor is

a forged documents and one Mr. Rajendra Kumar, who claimed to have

signed the loan Agreement as Director of the Corporate Debtor, was not the

Director of the Corporate Debtor and said Rajendra Kumar became the

Director of the Corporate Debtor only on 29.08.2019 and on the date, i.e.,

31.05.2018 Rajendra Kumar was not even Director. It is further submitted

that the Appellant has obtained an RTI reply from the Chief Treasury Office

Company Appeal (AT) (Insolvency) No. 1431 of 2022 3 of Ghaziabad that the stamp paper on which loan Agreement is claimed to

be prepared was issued only in the year 2020.

5. The learned Counsel appearing for Financial Creditor refuting the

submission of the learned Counsel for the Appellant submits that notice on

Section 7 Application was served on the Corporate Debtor even before filing

of the Application, which was returned as refused. After issuance of notice

of Section 7 Application, notices were sent on the registered email of the

Corporate Debtor being corporate.affairs@the3c.in. The notices were also

sent by Speed Post to the Corporate Debtor at the address C-23, Greater

Kailash Enclave, Part-I, New Delhi-110048 by Tracking No.Z69538196,

which was successfully delivered on 27.11.2021. The Appellant has now

come up with a case that the said notice served on 27.11.2021 was sent to

the Appellant by Rimrock Infratech Pvt. Ltd. on 03.09.2022. It is

submitted that the Appellant is Director both of Corporate Debtor and the

Rimrock Infratech Pvt. Ltd. The Appellant is infact Director of 165

companies, which details obtained from Ministry of Corporate Affairs have

been brought on record as Annexure-I to the affidavit filed by the

Respondent. The address of Rimrock Infratech Pvt. Ltd. and the Corporate

Debtor is the same and notice admittedly was received on 27.11.2021 at

the same address. It is submitted that the email address of the Corporate

Debtor as is reflected in the M/o Corporate Affairs website is

corporate.affairs@the3c.in, which email address deliberately got changed

by the Corporate Debtor after 30.12.2021 into records3c.infra@gmail.com.

Notices sent by the Financial Creditor on the registered email address at

Company Appeal (AT) (Insolvency) No. 1431 of 2022 4 the relevant time has to be treated to be duly delivered and before the

Adjudicating Authority several opportunities were given to the Corporate

Debtor to appear and due to non-appearance, the Adjudicating Authority

proceeded ex-parte against the Appellant. Coming to the loan Agreement

dated 31.05.2018, it is submitted that Mr. Rajendra Kumar, who is claimed

not to be Director of the Corporate Debtor has signed the loan Agreement

and in pursuance of the loan Agreement, payment was transferred by State

Bank of India, which was transferred in the account of the Corporate

Debtor on 02.06.2018. Bank statement of account pertaining to transfer

of the amount has been filed along with Section 7 Application, which clearly

proves the disbursement. The Appellant has raised the bogie that loan

Agreement is a forged one, whereas, no explanation has sought to be given

and no denial has been made regarding receipt of the amount in the Bank

account of the Corporate Debtor.

6. We have considered the submissions made by the learned Counsel

for the parties and have perused the records.

7. The first question to be considered is as to whether notices sent in

Section 7 Application to the Corporate Debtor were duly served or not?

8. In the Appeal itself, the Appellant has filed Company Master Data at

pages 68, which was obtained on 26.10.2021, indicate that email ID of the

Corporate Debtor is corporate.affairs@the3c.in. Another Company Master

Data, which has been filed at page 90 as Annexure A-5 was obtained on

09.03.2022, which shows that email address is now changed. New email

address as recorded of the Corporate Debtor is records3c.infra@gmail.com.

Company Appeal (AT) (Insolvency) No. 1431 of 2022 5 In Section 7 Application, which has been filed by the Financial Creditor,

the notices which were sent to the Corporate Debtor were at the email

address registered as shown in Company Master Data obtained on

26.10.2021. The fact that subsequently the Corporate Debtor got its email

address changed in the Company Master Data is reflected in Company

Master Data obtained on 09.03.2022, cannot be a ground to be pressed by

the Corporate Debtor that notices were not sent at the registered email

address of the Corporate Debtor.

9. Coming to the notices which have been sent by post, the Respondent

has filed an affidavit by which the Speed Post sent to the Corporate Debtor

at address C-23, Greater Kailash Enclave, Part-I, New Delhi by Tracking

No. Z69538196, which is shown as Annexure A to the affidavit. Tracking

Report has also been brought on record, which indicates that Speed Post

was successfully delivered on 27.11.2021. The notices, however, were

received by M/s. Rimrock Infratech Pvt. Ltd. It is noticed that M/s. Rimrock

Infratech Pvt. Ltd. is also a company with same address in which the

Appellant is a Director, which is reflected in Annexure-I filed along with

affidavit of the Respondent. Annexure-I filed by the Respondent indicates

that Appellant is Director in more than 165 companies including the

Corporate Debtor and M/s. Rimrock Infratech Pvt. Ltd. The notices sent

by the Financial Creditor were on the same address, which is the address

of the Corporate Debtor and were admittedly received on 27.11.2021, but

receipt was given by another company of which the Appellant is a Director.

The Appellant himself in this Appeal and affidavits filed in this Tribunal

Company Appeal (AT) (Insolvency) No. 1431 of 2022 6 have admitted that the copy of the Company Petition was forwarded to them

from the email address of the Director of M/s. Rimrock Infratech Pvt. Ltd.,

which was received by the Appellant only on 03.09.2022. Thus, receipt of

the notices are fully proved by the statement of the Appellant himself. No

reason has been given as to when notices were received on 27.11.2021 and

why it was forwarded to Appellant on 03.09.2022. It appears that

forwarding of the email by Director of M/s. Rimrock Infratech Pvt. Ltd. on

03.09.2022 has been created by the Appellant to make out a case for the

purposes of present Appeal. We, thus, are satisfied that notices were duly

served on the Appellant. The Adjudicating Authority in its order in

paragraph 10 has recorded that on three dates, there was no representation

on behalf of the Corporate Debtor. Paragraph 10 is as follows:

"10. From perusal of the order sheet, it is observed that despite service, there was no representation by or on behalf of the Corporate Debtor on 03.12.2021, 22.03.2022 and 10.05.2022. Accordingly, the Respondent was proceeded ex-parte vide order dated 10.05.2022."

10. The Financial Creditor has also filed an affidavit of service dated

15.12.2021 before the Adjudicating Authority where details of service of

notices were mentioned. The Adjudicating Authority being fully satisfied

by the affidavit of service and materials brought on record has held that

notices were served.

Company Appeal (AT) (Insolvency) No. 1431 of 2022 7

11. Now coming to the submission of the Appellant that loan Agreement

dated 31.05.2018 was a forged document and Rajendra Kumar, who

claimed to have signed the document was not the Director of the Corporate

Debtor at the relevant time. According to the Appellant, Rajendra Kumar

became the Director of the Corporate Debtor only with effect from

29.08.2019. The Appellant himself has brought on record a letter of

Rajendra Kumar as Annexure at page 102 (English translation of which is

at page 102-A). It is useful to extract the letter signed by Rajendra Kumar

addressed to the Appellant, which is to the following effect:

"To Sh. Surpreet Sir, Bidur Sir, Nirmal sir, Greetings, I, Rajinder Kumar, Store Boy work in 3 C Company. I have to humbly request you all that I should be removed from the post of Director from all the companies of 3 C Group in which I had become Director on asking by you people. Daily police personnel and government people keep coming to my house and they keep threatening me to put me in prison.

Therefore, I request you to remove me from all the director posts because I am an illiterate poor person. I do not understand fast. I only sign on being asked by you and on the documents sent by you. I frighten too much from all these things and my family members are also very much troubled. I am not able to understand anything as to what I should do.

I request you to please save me from all these troubles and whatever amount is outstanding to me, that please give to me.

Company Appeal (AT) (Insolvency) No. 1431 of 2022 8 Thanking you, Sd/ Rajinder Kumar 10.12.2010"

12. The above letter itself clearly indicates that Rajendra Kumar was a

staff of 3 C Company and he requested that he should be removed from the

post of Director from all the Companies of 3 C Group. The letter sent by

Rajendra Kumar has been brought on record by the Appellant himself,

which indicates that Rajendra Kumar was Director in All Companies of 3

C Group, hence, the signature of Rajendra Kumar on the loan Agreement

is clearly explained as he was made Director in all Companies of 3 C by the

Appellant and other Promoters.

13. Coming to the RTI reply, which has been filed by the Appellant,

suffice it to say that RTI reply cannot be a basis for disregarding the loan

Agreement dated 31.05.2018. Admittedly, the RTI reply was obtained at

the instance of the Appellant on 03.09.2022, which was a document

procured by the Appellant for the purposes of the case. More so, the

amount transferred in the Bank account of the Appellant was in pursuance

to the loan Agreement. There is no denial of transfer of the amount by

Bank transfer in the account of the Corporate Debtor. When disbursement

of the loan is not even denied, the cry of the Appellant that loan Agreement

was forged, has no weight. Further, the Adjudicating Authority has also

relied on record of Financial Information in Form C in support of

establishing default.

14. We, thus, are satisfied that there were sufficient materials before the

Adjudicating Authority to accept the debt and default and no error has

Company Appeal (AT) (Insolvency) No. 1431 of 2022 9 been committed in admitting Section 7 Application. We, thus, do not find

any merit in the Appeal. The Appeal is dismissed. No costs.

[Justice Ashok Bhushan] Chairperson

[Barun Mitra] Member (Technical)

NEW DELHI

6th January, 2023

Ashwani

Company Appeal (AT) (Insolvency) No. 1431 of 2022 10