Vishal Goenka & Anr vs Sandeep Khaitan Resolution ...

Comp. App. (AT) (Ins) No. 1549 of 2023 IN THE MATTER OF: Vishal Goenka & Anr. ...Appellants

Versus

Sandeep Khaitan Resolution Professional to P. L. ...Respondents Vehicals Pvt. Ltd. & Anr.

Present: For Appellant : Mr. Ravi Raghunath, Adv. For Respondent : Mr. Abhishek Prasad, Adv. for R1

ORDER

Per: Justice Rakesh Kumar Jain:

03.01.2024: This appeal is directed against the order dated 21.11.2023

passed by the Adjudicating Authority (National Company Law Tribunal,

Guwahati Bench, Guwahati).

2. The Appellants No. 1 and 2 are the erstwhile/suspended directors of

the Corporate Debtor (P.L. Vehicals Pvt. Ltd.) which was running a car

dealership of Renault Cars at Shillong, Meghalaya from the year 2016.

3. The Corporate Debtor filed an application under Section 10 of the

Insolvency and Bankruptcy Code, 2016 (in short 'Code') bearing C.P. (IB) No.

31/10/GB/2022. It was admitted on 10.04.2023. The Interim Resolution

Professional (in short 'IRP') was replaced by Respondent No. 1 who was

appointed as Resolution Professional (in short 'RP') on 19.05.2023.

3. Respondent No. 1 requested the Appellants to provide the tally data

through email dated 22.06.2023 the Appellants informed that the computer

system in which the accounting data of the company was maintained got

damaged and is not recoverable because the hard disk of the system has got

corrupted. Respondent No. 1 asked for certain information such as tally license number etc. on 01.07.2023. Since, information was not forthcoming,

therefore, Respondent No. 1 filed an application under Section 19(2) of the

Code bearing IA (IBC)/89/GB/2023 in which notice was issued and while it

was pending, the order of liquidation was passed on 25.08.2023. The

Adjudicating Authority, vide its order dated 31.08.2023, asked Respondent

No. 1 to provide list of the remaining documents/information. The

Adjudicating Authority heard the application bearing 89 of 2023 on

21.11.2023 and passed the impugned order. It is observed in the impugned

order that the Adjudicating Authority was informed by the Liquidator that the

opening balance provided in the tally data for the FY 2021-22 is not matching

with the closing balance of the previous financial years which is required for

conducting the forensic audit by the Liquidator. Counsel appearing on behalf

of the present Appellants undertook to resolve the issue and furnish the

correct data to the liquidator within couple of days and thus direction was

issued to furnish the tally data from FY 2015 till date with a rider that in case

of its failure, appropriate order shall be passed. The Adjudicating Authority

further directed that information shall be given by the Respondents

(appellants herein) at least 48 hours before the next date of hearing to the

liquidator.

4. The Appellants is basically aggrieved against the part of the order by

which the Adjudicating Authority had observed that in case of failure of

providing information, appropriate order shall be passed and hence filed the

present appeal.

5. At the time of preliminary hearing on 30.11.2023, Counsel for the

Appellants was specifically asked that if the tally data got corrupted from the

year 2015 then what remedial actions were taken by the Appellants at that

time. Counsel for the Appellants submitted that he has no instruction in this regard and sought time till the next day. The case was then adjourned to

01.12.2023 and was kept in the list of fresh cases.

6. At the outset, Counsel for the Appellant read the order dated

30.11.2023, much less the query put to him by this Court which is contained

in para 7 of the said order but he did not give any answer to the query and

rather submitted that affidavits were filed before passing of the impugned

order which have not been dealt with by the Adjudicating Authority, therefore,

case may be remanded back.

7. We have heard Counsel for the Appellants and after appreciating the

facts and circumstances of this case, we are of the considered opinion that

the Appellants is playing hide and seek with the Court as it has failed to give

any answer to the query put to him, contained in Para 7 of the order dated

30.11.2023, for which he had taken time to seek instructions only for a day

and could not give any answer even after the expiry of about one month.

8. In such circumstances, we do not find any reason to interfere with the

impugned order passed by the Adjudicating Authority and hence, the present

appeal is hereby dismissed. No costs.

[Justice Rakesh Kumar Jain] Member (Judicial)

[Mr. Naresh Salecha] Member (Technical) Sc/rr