Tlt €“ Turbo (Sichuan) Co. Ltd vs Lanco Infratech Ltd. & Ors

(Arising out of Order dated 5th March, 2019 passed by the Adjudicating Authority (National Company Law Tribunal) Hyderabad Bench, Hyderabad)

IN THE MATTER OF:

KSB Shanghai Pump Co Ltd. 1400 Jiangchuan Road, Minhang, Shanghai 2002245 China Appellant

Versus

1. Lanco Infratech Ltd, Plost No.4, Softwarre Units Layout Hitech City, Madhpur Hyderabad 500081

(Represented by its IRP Mr. SavanGodiawala) 7th Floor, Building 10, Tower B, DLF Cyber City Complex DLF City Phase -II, Gurgaon 122002

2. IDBI Bank Private Ltd, IDBI Tower, WTC Complex Cuffe Parade, Colaba Mumbai 400 005

3. Bank of China No.23, Zhongshan Road (E-1) Shanghai, P.R. China Respondents

Ms Tine Abraham, Ms VarunaBhanrale and Mr AkshayVasishtha, Advocates for Appellant.

Mr. Ramji Srinivasan, Sr. Advocate with Mr. VaijayantPaliwal and Ms Charu Bansal, Advocates for Respondents.

And

Company Appeal (AT)(Ins) No.230, 234 and 235 of 2019 2

Company Appeal (AT)(Insolvency) 234 of 2019

IN THE MATTER OF:

M/s TLT-Tourbo (Sichuan) Co Ltd No.15, Wukexisilu, Wuhou district, Chengdu, Sichuan, People's Republic of China Appellant

Versus

1. LancoInfratech Ltd, Plost No.4, Softwarre Units Layout Hitech City, Madhpur Hyderabad 500081

(Represented by its IRP Mr. SavanGodiawala) DelloiteTouche, Tohmatsu, India LLP, 19th Floor, Shapath-V, S.G.Road, Ahmedabad.

2. Industrial & Commercial Bank of China, Sichuan Branch, Zongfu Building, No.35, Zongfu Road, Jinjiangdistt. Chengdu City, Sichuan Province 610016 China.

3. IDBI Bank Ltd, Trade Finance, Specialised Corporate Branch 5-9-89/1 and 2, Chapel Road, Hyderabad 500 001 Telangana, India Respondents

Mr. Abhijeet Sinha, Mr. SulabhRewari, Ms Neha Maathen and Mr Aditya Shukla, Advocates for Appellant.

Mr. Ramji Srinivasan, Sr. Advocate with Mr. VaijayantPaliwal and Ms Charu Bansal, Advocates for Respondents.

And

Company Appeal (AT)(Ins) No.230, 234 and 235 of 2019 3

Company Appeal (AT)(Insolvency) 235 of 2019

IN THE MATTER OF:

M/s Beijing Power Equipment Group Co Ltd No.12, Haotian Street, Liangxiang, FangshanDistt. Beijing 102 401 People's Republic of China Appellant

Versus

1. LancoInfratech Ltd, Plot No.4, Softwarre Units Layout Hitech City, Madhpur Hyderabad 500081

(Represented by its IRP Mr. SavanGodiawala) DelloiteTouche, Tohmatsu, India LLP, 19th Floor, Shapath-V, S.G.Road, Ahmedabad.

2. China Construction Bank Corporation, Beijing Branch, 17/F, Entry 4, Building No.28, Xuanwumen West Street, Beijing 100 053 China

3. IDBI Bank Ltd, Trade Finance, Specialised Corporate Branch 3rd Floor, Khivraj Complex, I, 480 Anna Salai, Nandanam, Chennai 600035 Tamil Nadu, India. Respondents

Mr. Abhijeet Sinha, Mr. SulabhRewari, Ms Neha Maathen and Mr Aditya Shukla, Advocates for Appellant.

Mr. Ramji Srinivasan, Sr. Advocate with Mr. VaijayantPaliwal and Ms Charu Bansal, Advocates for Respondents.

Company Appeal (AT)(Ins) No.230, 234 and 235 of 2019 4

JUDGMENT

SUDHANSU JYOTI MUKHOPADHAYA, J

In Corporate Insolvency Resolution Process against M/s Lanco

Infratech Ltd (Corporate Debtor), the applicant/appellant, M/s KSB Shanghai

Pump Co Ltd, filed application under Section 60(5) of Insolvency &

Bankruptcy Code, 2016 ('I&B Code' in short) seeking directions to Liquidator

to restrain from invoking or encashing the Bank Guarantee bearing No.GC

0608115000737 for US$ 510,000 dated 07th August, 2018 issued by Bank of

China and for further direction to Bank of China not to pay any amount to

the Corporate Debtor's Bank.

2. Similar application was filed by the applicant/appellant, M/s TLT-

Tourbo (Sichuan) Co Ltd, under Section 60(5) of I&B Code with similar prayer

to restrain from invoking and encashing the Contract Performance Bank

Guarantee (PBG) No.LG61205B500032 dated 30th October, 2015 and not to

pay any amount to the Corporate Debtor's Bank.

3. The other applicant/appellant, M/s Beijing Power Equipment Group Co

Ltd, also moved an application under Section 60(5) of the I&B Code for seeking

direction to Resolution Professional to restrain from invoking/encashing

Performance Bank Guarantee (PBG) No.11100020003190 dated 11th June,

2015and to return to the applicant any amounts paid out upon encashment

of the PBG.

Company Appeal (AT)(Ins) No.230, 234 and 235 of 2019 5

4. The Adjudicating Authority by similar order all dated 5th March, 2019

taking into consideration the fact that the applicants/appellants have filed

their respective claim before the Resolution Professional arising out of their

respective contract, and the Resolution Professional has not accepted their

claim, held that the applicants/appellant cannot seek injunction against

Corporate Debtor for refraining it from invoking the 'Corporate Performance

Bank Guarantee's (CPBG) and made following observations:-

"14. The burden is on the applicant to establish fraud in

invoking Bank Guarantee. Admittedly, Bank Guarantee

is being invoked which is in terms of Bank Guarantee. It

is not the case of Applicant that any fraud was played in

obtaining Bank Guarantee. Similarly, there is also no

material to come to a conclusion that any fraud was

played on the Applicant in invoking the Bank Guarantee.

It is also not the case of the Applicant that any fraud was

involved in invoking Bank Guarantee. It is true any

disputed question of fact cannot be decided in a

summary way. It is the case of Applicant that it has not

committed any breach of the performance of the

obligations covered by the contract. However, Resolution

Professional/Liquidator disputed the same. In other

words that it is the case of Resolution

Professional/Liquidator that Applicant committed breach

of the terms of contract. So dispute of this nature cannot

Company Appeal (AT)(Ins) No.230, 234 and 235 of 2019 6

be decided in a summary fashion. Therefore, injunction

cannot be granted in favour of the Applicant from

invoking the Bank Guarantee by Corporate Debtor in the

circumstances of the case.

15. Thus, it is clear, no material before the Adjudicating

Authority that invocation of Bank Guarantee by

Corporate Debtor in the present case is a fraudulent

action and that Applicant will sustain irreparable injury.

The only grievance of the Applicant that it has completed

the contract work assigned to it. The question whether

Applicant failed to perform its part of the contract or not,

is a question to be determined by way of evidence. The

said dispute cannot be resolved by summary procedure.

If Bank Guarantee in terms of guarantee, then Corporate

Debtor is entitled to invoke it. So injunction as prayed

cannot be granted in respect of Bank Guarantee covered

by this Application.

16. In the result, Application is dismissed. Interim order,

if any stands vacated."

M/s KSB Shanghai Pump Co Ltd.

5. The case of the applicant/appellant, M/s KSB Shanghai Pump Co Ltd

is that the Corporate Debtor entered into a contract with the appellant on 24th

April, 2015 for design, engineering, manufacture, assembly etc for 1x660 MW

Company Appeal (AT)(Ins) No.230, 234 and 235 of 2019 7

Supercritical Ennore Thermal Power Station Expansion Project alongwith

insurance, forwarding on FOB Shanghai Seaport on delivery basis including

loading the vessel of main equipment and mandatory spares, apart from

supervision, erection and commissioning of BFP. The above project was

awarded to the Corporate Debtor by way of an Engineering Procurement and

Construction Contract by TANGEDCO.

6. Learned counsel for the appellant has submitted that the appellant

cannot be made to suffer irretrievable loss owing to Respondent, Corporate

Debtor. It was also submitted that the Corporate Debtor through the

Resolution Professional had fraudulently invoked the 'Performance Bank

Guarantee' with a view to deprive the appellant of its monies and to make

wrongful gain.

M/s TLT-Turbo (Sichuan) Co Ltd

7. Learned counsel for the appellant, M/s TLT-Turbo (Sichuan) Co Ltd

submitted that main contract was executed between Lanco Industries Ltd

(Corporate Debtor) and the Tamil Nadu Generation and Distribution Corp Ltd

in the year 2014 for setting up of a 'Thermal Power Project' at Ennore. On

27th August, 2015 the contract was executed between the appellant and TLT

and M/s Lanco Industries Ltd for design, supply, erection and commissioning

of ID, FD and PA fans package (alongwith spares) for the Ennore Project. This

was in the nature of a sub-contract. M/s Lanco Industries Ltd was obliged to

open the Letter of Credit in favour of appellant- TLT on time, covering 50% of

the Contract Price-which was a pre-requisite for appellant-TLT to arrange for

the packing and delivery of goods. It was also submitted that Advance Bank

Company Appeal (AT)(Ins) No.230, 234 and 235 of 2019 8

Guarantee was issued on 30th October, 2015 in terms of payment terms by

Respondent Banks on behalf of appellant-TLT, in favour of M/s Lanco

Industries Ltd for US$ 418,066/- valid upto 27th June, 2016. It is submitted

that Performance Bank Guarantee (PBG) was furnished by Respondent Banks

on 30th October, 2015 in terms of Payment Terms in favour of M/s Lanco

Industries Ltd for US$ 418,066/- valid upto 1st April, 2020. The Contract

specifically provided that where the equipment did not perform as per

guaranteed value, this would amount to non-performance of the Contract and

M/s Lanco Industries Ltd will be entitled to invoke the PBG.

8. It was further submitted that in between 4th January, 2016 to 12th

June, 2016, M/s Lanco Industries Ltd failed to inspect the materials/supplies

which were stored in China alongwith approved Manufacturing Quality Plan.

M/s Lanco Industries Ltd was obliged to inspect the materials/supplied and

issue MDCCs which were pre-requisite for appellant-TLT to claim payment

and deliver goods. It was also contended that Monthly Progress Report was

issued by appellant-TLT to M/s Lanco Industries Ltd on 1st February, 2016.

In between January to May, 2017 correspondence exchanged between

appellant-TLT and M/s Lanco Industries Ltd regarding further extension of

Advance Bank Guarantee and communication by appellant-TLT that post

amendment was necessary for further extension of the Advance Bank

Guarantee beyond 27th April, 2017. It was submitted that on 7th August,

2017 the Corporate Insolvency Resolution Process was initiated against M/s

Lanco Industries Ltd. As on the said date, the Advance Bank Guarantee had

lapsed, therefore, there was no grievance of non-performance by appellant-

Company Appeal (AT)(Ins) No.230, 234 and 235 of 2019 9

TLT so no request was made for extension of Advance Bank Guarantee. It

was submitted that subsequently on 9th April, 2018 the principal contract

between M/s Lanco Industires Ltd and TANGEDCO was terminated by

TANGEDCO owing to M/s Lanco' Industries Ltd breaches. The Performance

Bank Guarantee was purportedly invoked by the Resolution Professional of

M/s Lanco Industries Ltd on 30th July, 2018 on the ground of alleged non-

performance and failure to extend the Advance Bank Guarantee. No notice

was given by the Resolution Professional of M/s Lanco Industries Ltd nor the

Contract was terminated by M/s Lanco Industries Ltd .

9. According to counsel for the appellant a guarantee can only be invoked

in accordance with its terms. The Bank Guarantee was issued towards timely

completion and the faithful performance of the Contract in accordance with

the terms and conditions specified in the Contract. Therefore the

Professional/Liquidator does not have the power under IBC to invoke the

Performance Bank Guarantee.

10. It was also submitted that in exercising functions under the I&B Code,

the Resolution Professional was required to act in terms of the contract

executed by the corporate debtor and Appellant. There being no case of

breach of the contract by appellant-TLT made out by the Resolution

Professional/Liquidator, and M/s Lanco Industries Ltd having not raised any

dispute as to performance of appellant-TLT or taken steps for invocation of

the Performance Bank Guarantee and having failed to fulfill the necessary

pre-requisite for extension of the Advance Bank Guarantee, there was no

Company Appeal (AT)(Ins) No.230, 234 and 235 of 2019 10

ground for the Resolution Professional/Liquidator to invoke the Performance

Bank Guarantee.

11. It was further submitted that in terms of I&B Code, the Resolution

Professional/Liquidator did not have the power to invoke the Performance

Bank Guarantee before taking appropriate legal action.

Beijing Power Equipment Group Co Ltd

12. Similar plea has been taken by learned counsel for M/s Beijing Power

Equipment Group Co Ltd as taken by M/s TLT-Turbo (Sichuan) Co Ltd, the

details of dates of contract, advance bank guarantee etc have been shown as

detailed below.

13. Contract was entered into between M/s Lanco Industries Ltd and M/s

Tamil Nadu Generation and Distribution Corp Ltd for setting up of a Thermal

Power Project at Ennore, Tamil Nadu in the year 2014. On 22nd April, 2015

the contract was executed between appellant-M/s Beijing Power Equipment

Group Co Ltd and M/s Lanco Industries Ltd for supply, manufacture, delivery

of a coal mill and seal air fans package for the Ennore Project and the total

contract value was US$ 4.98 million. The Advance Bank Guarantee was

issued on 11thJune, 2015 in terms of payment terms by Banks on behalf of

appellant-M/s Beijing Power in favour of M/s Lanco Industries Ltd for US$

498,000/- valid upto 21st August, 2016. The Performance Bank Guarantee

(PBG) was also furnished by Banks on 11th June, 2015 in terms of Payment

Terms in favour of M/s Lanco Industries Ltd for US$ 498,000/- valid upto 1st

April, 2020. Correspondence dated 10th October, 2015 showed M/s Lanco

Company Appeal (AT)(Ins) No.230, 234 and 235 of 2019 11

Industries Ltd's failure to open the LC on time as was required under the

Contract leading to delay in performance. In between 5th November, 2015 to

14th January, 2016, correspondence were made which shows failure on the

part of M/s Lanco Industries Ltd to inspect the materials/supplies that were

stored in China so that delivery could be completed. Monthly Progress

Reports were issued by M/s Beijing Power to M/s Lanco Industries Ltd

between November, 2015 to 2016. M/s Beijing Power also sent e-mail dated

11th May, 2017 agreeing to extend the Advance Bank Guarantee upto 17th

October, 2017 and extending the claim period upto 17th January, 2018. In

the meantime Corporate Insolvency Resolution Process was initiated against

M/s Lanco Industries Ltd on 7th August, 2017 due to which the contract

between M/s Lanco Industries Ltd and TANGEDCO was terminated by

TANGEDCO owing to M/s Lanco Industries Ltd's breaches on 9th April, 2018.

Only thereafter the Performance Bank Guarantee was invoked by the

Resolution Professional on 31st July, 2018.

14. It was submitted that the guarantee can be invoked only in accordance

with its terms and conditions. The Bank Guarantee was issued towards

timely completion and the faithful performance of the Contract as per terms

and conditions specified in the Contract. According to appellant in no case

for failure of performance of M/s Lanco Industries Ltd it can be invoked.

15. It was submitted that in exercising functions under the I&B Code, the

Resolution Professional was required to act in terms of the contract executed

by the corporate debtor and Appellant. There being no case of breach of the

contract by M/s Beijing Power made out by Resolution

Company Appeal (AT)(Ins) No.230, 234 and 235 of 2019 12

Professional/Liquidator, and M/s Lanco Industries Ltd having not raised any

dispute as to about performance of M/s Beijing Power could not have taken

steps for invocation of the Performance Bank Guarantee.

16. It was further submitted that in terms of I&B Code, the Resolution

Professional had no power to invoke the Performance Bank Guarantee before

first taking appropriate legal action.

17. Counsel for the Resolution Professional/Liquidator submitted that the

performance bank guarantee is a separate contract which is unconditional

and irrevocable. It was also submitted that the performance bank guarantee

is an irrevocable and unconditional bank guarantee where under the

Guarantor Bank has undertaken to make payment on first demand by the

Corporate Debtor without any conditions/restrictions or any further proof.

The performance bank guarantee clearly provides that any such demand

made by the Corporate Debtor shall be conclusive and binding

notwithstanding any dispute pending before any court, tribunal, arbitrator or

any other authority. Accordingly the Corporate Debtor is well within its right

to invoke the Performance Bank Guarantee without any reference to the terms

of the underlying contract.

18. It was further contended that it is a settled position of law that courts

must not interfere with the invocation of bank guarantees, unless the

invocation amounts to fraud of egregious nature and the fraudulent

invocation causes irretrievable damage to the rights of the persons against

whom such bank guarantees are invoked. The onus of proof is on the

Appellants to establish fraud of an egregious nature and or to establish

Company Appeal (AT)(Ins) No.230, 234 and 235 of 2019 13

irretrievable harm. The Appellants have failed to establish both in the present

facts and circumstances.

19. According to learned counsel for the Resolution Professional/Liquidator

the issues raised in these Appeals cannot be determined. The decision of this

Appellate Tribunal has been relied upon in M/s Dynepro Private Limited Vs

Mr. V. Nagarajan CA(AT)(Insolvency) No.229 of 2018 to suggest that the

Adjudicating Authority cannot decide the disputed question of facts including

claim or counter claim. In the said case this Appellate Tribunal held that a

suit could only be filed in the appropriate forum after completion of the period

of moratorium.

20. Referring to the relevant dates, as referred to above, it was submitted

that the appellants have only raised claims for past dues.

21. It was also submitted that the claim submitted by the Appellants were

found inadmissible since the goods were never supplied by the appellants.

According to learned counsel as per terms and procedures of payment as laid

down in Appendix 2 to the Contract, the Corporate Debtor made an advance

payment of 10% of the contract price to each of the Appellants. Which

stipulates:-

"a. 60% of the total contract price shall be paid upon shipment on

pro rata basis as per the approved billing break up on submission of

invoices and shipping documents alongwith material dispatch

clearance certificate issued by the Purchaser or its authorized

representative;

Company Appeal (AT)(Ins) No.230, 234 and 235 of 2019 14

b. 20% of the total contract price shall be paid on pro-rata basis as per

the approved billing break-up on receipt of equipment at site and

physical verification and certification by the Purchaser or its authorised

representative.

c. Balance 10% of total contract price shall be paid on successful

completion of performance guarantee test of the plant and taking over

of the plant by Employer/Owner or 1st October 2018 whichever is

earlier.

22. It was further submitted that none of the above three conditions have

been met by any of the appellant and till date i.e. the goods have not been

shipped nor supplied on site. Therefore, the question of satisfying the

guarantee test does not arise. Therefore, the occasion to make payment of

remaining contract price does not arise. It was also submitted that the

appellant, M/s KSB Shanghai Pump Co Ltd, was in breach of contract by not

extending the Advance Bank Guarantee.

23. According to learned counsel for the Resolution Professional in terms of

Clause 19.1 of the Special Purchase Conditions of the Contract the Corporate

Debtor can get the Advance Bank Guarantee extended till the completion of

supplies for the unit is achieved. However, admittedly the appellants had

refused to extend the Advance Bank Guarantee despite specific request from

the Corporate Debtor having been made on 10th July, 2017.

24. It was further stated that the only reason given by the appellants for

refusing extension of Advance Bank Guarantee was that in view of 'public

Company Appeal (AT)(Ins) No.230, 234 and 235 of 2019 15

announcement of bankruptcy' against the Corporate Debtor, they were not

extended. However, it is pertinent to note that at the time of refusal of

extension by the appellants, the Corporate Debtor was undergoing Corporate

Insolvency Resolution Process which does not amount to company going

through bankruptcy.

25. Similar objection has been raised by Resolution Professional/Liquidator

in Company Appeal (AT) (Insolvency) No.234 of 2019. In this case also it was

stated that the case of the appellant was found inadmissible since the goods

were never supplied by the Appellant. It was informed that in accordance

with the terms and procedures of the payment as laid down in Appendix 2 to

the Contract, the Corporate Debtor had duly made an advance payment of

10% of the contract price to the Appellant. The terms of payment stipulate

was as follows:

"a.50% of the contract price through Letter of Credit upon

shipment on pro rata basis as per the approved billing break-up

on submission of invoices and shipping documents alongwith

with material dispatch clearance certificate issued by the

Purchaser or its authorized representative;

b. 30% of the contract price shall be released on pro-rata basis

shall be paid through Letter of Credit as per the approved billing

break-up shall be paid through Letter of Credit on receipt of

equipment at site and physical verification and issue of material

receipt certificate by the Purchaser that the equipment has been

received in good condition.

Company Appeal (AT)(Ins) No.230, 234 and 235 of 2019 16

c. Balance 10% of contract price shall be paid on successful

erection, testing and commissioning of the system, upon

submission of an additional performance bank guarantee for 10%

contract price valid until PG test (scheduled on 1st October,

2018).

26. It was also submitted that admittedly none of the above mentioned

three conditions have been met till date i.e. the goods have not been shipped

nor supplied on site and the following question of satisfying the guarantee

test automatically does not arise.

27. It was submitted that the appellant was in breach of the contract by not

extending the Advance Bank Guarantee. As per Clause 19.1 of the Special

Purchase Conditions of the Contract, the Corporate Debtor has right to get

the Advance Bank Guarantee extended till the completion of supplies for the

unit is achieved. However, admittedly the appellant has refused to extend the

Advance Bank Guarantee despite a specific request made by the Corporate

Debtor.

28. It was further stated that the Performance Bank Guarantee was rightly

invoked. According to learned counsel while managing the operations of the

Corporate Debtor under its obligation to preserve and protect the assets of

the Corporate Debtor, the Resolution Professional invoked the Performance

Bank Guarantee in order to recover the substantial advance payment which

have been lying unjustly with the appellant.

Company Appeal (AT)(Ins) No.230, 234 and 235 of 2019 17

29. In respect to appellant of Company Appeal (AT) (Insolvency) No.235 of

2019 learned counsel took similar plea as taken in the case of TLT-Turbo

(Sichuan) Co Ltd, Company Appeal (AT)(Insolvency) No.234 of 2019. In this

case also it is stated that the case of the claim of the appellant was found

inadmissible since the goods were never supplied by the Appellant. It was

stated that in accordance with the terms and procedures of the payment as

laid down in Appendix 2 to the Contract, the Corporate Debtor had duly made

an advance payment of 10% of the contract price to the Appellant. The terms

of payment stipulate was as follows:

"a.50% of the total contract price shall be paid upon shipment on

pro rata basis as per the approved billing break-up on submission

of invoices and shipping documents alongwith material dispatch

clearance certificate issue by the Purchaser or its authorized

representative.

b. 25% of the total contract price shall be paid on pro-rata basis

as per the approved billing break-up on receipt of equipment at

site and physical verification and certification by the Purchaser

or its authorised representative.

c. 5% of total contract price shall be paid on successful

commissioning of synchronization of the unit or within 27

months from the scheduled FOB date at China Port, whichever is

earlier.

Company Appeal (AT)(Ins) No.230, 234 and 235 of 2019 18

d. Balance 10% of total contact price shall be paid on successful

completion of performance guarantee test of the plant and taking

over of the plant by Employer/Owner or 1st October, 2018

whichever is earlier.

30. It has also been pleaded that admittedly none of the above mentioned

three conditions have been met till date i.e. the goods have not been shipped

nor supplied on site and the following question of satisfying the guarantee

test automatically does not arise.

31. In this case also the same plea has been taken as taken in the case of

TLT-Turbo (Sichuan) Co Ltd that the Performance Bank Guarantee was rightly

invoked, the contract having become void.

32. In these appeals, we are not inclined to decide the claim and counter

claim as has been made by the parties in view of the fact that the Adjudicating

Authority has already passed order of liquidation of the Corporate Debtor.

33. In all the cases the appellants have sought direction to Liquidator to

restrain from invoking or encashing the Bank Guarantee. However, the Bank

Guarantees were invoked. Though it is not clear as to whether the amount

have been realised by the Corporate Debtor on invocation of aforesaid

Performance Bank Guarantees or not, which was to be released by the Bank

of China.

34. Therefore, the direction as sought for by appellants to direct not to pay

any amount to the Corporate Debtor, cannot be ordered.

Company Appeal (AT)(Ins) No.230, 234 and 235 of 2019 19

35. In case the Performance Bank Guarantees have been invoked, and the

Corporate Debtor has received the amount out of the Performance Bank

Guarantees, in such case we are of the view that the appellants can file their

respective claim before Liquidator who may decide the claim in terms of

Section 40 of I&B Code. Thereafter if any person be aggrieved, such person

is entitled to file appeal under Section 42 of Insolvency & Bankruptcy Code,

2016 before the Adjudicating Authority.

36. For the above said reasons this Appellate Tribunal is not inclined to

decide the claim and counter claim as made by the parties, but give liberty to

the appellants to move before the Appropriate Forum for appropriate relief.

The appeals are accordingly disposed off with the aforesaid observations.

(Justice S.J. Mukhopadhaya) Chairperson

(Justice Bansi Lal Bhat) Member (Judicial) Dated:25-9-2019

New Delhi

Bm.

Company Appeal (AT)(Ins) No.230, 234 and 235 of 2019