Vitol S.A vs Mr. Abhishek Nagori & Ors

NATIONAL COMPANY LAW APPELLATE TRIBUNAL PRINCIPAL BENCH, NEW DELHI COMPANY APPEAL (AT) (INSOLVENCY) NO. 792 of 2020 (Arising out of the Order dated 29th May, 2020 passed by National Company Law Tribunal, Indore Bench at Ahmedabad, Court - I, in I.A. - 212/2019 in I.A. 458/2018 in TP 161/2019 in CP (IB) 19 of 2017)

IN THE MATTER OF:

Vitol S.A. Registered Office at: Boulevard du Pont d' Arve 28, CH 1205 Geneva, Switzerland ...Appellant

Versus

1. Mr. Abhishek Nagori, Reg. No. IBBI/IPA-001/IP-P0020/2016-17/10044, C/o JLN US & Company, Chartered Accountants 330/348, Third Floor, Tower A, Atlantis - K10, Opp. Vadodara Central, Sarabhai Main Road, Vadodara - 390007. ...Respondent No. 1

2. Asian Natural Resources (India) Limited (Formerly Bhatia International Limited) 'Corporate Debtor' Having registered office at:

102, Sundaram Complex, Gurmeet Nagar, Indore 452001. ...Respondent No. 2

3. Surinder Singh Bhatia S/o Mr. Kirpal Singh Bhatia Residing at Flat No. 801, 8th Floor, Le Orchid, 15th Road Khar (West), Mumbai - 400052. ...Respondent No. 3

Also at:

-2-

Comp. App. (AT) (Ins.) No. 792 of 2020

Plot No. 13 & 14, Aditya Nagar, Indore - 452001.

4. Gurvinder Singh Bhatia, S/o Mr. Kripal Singh Bhatia, Residing at Plot No. 1, 2, 3, 4, Aditya Nagar, Vishnupuri Colony, Indore - 452001. ...Respondent No. 4

5. Manjeet Singh Bhatia, S/o Mr. Kripal Singh Bhatia, 53, Gajanand Mandir Colony, Chandrapur, Maharashtra - 442401. ...Respondent No. 5

6. Amardeep Singh Bhatia S/o Gurvinder Singh Bhatia, Residing at Plot 1, 2, 3, 4, Aditya Nagar, Vishnupuri Colony, Indore - 452001. ...Respondent No. 6

7. Khalid Baig, Flat No. 104, Amar Aangan, Basant Vihar Colony, Indore - 452010. ...Respondent No. 7

8. Amardeep Singh Bhatia, 83, Vishnupuri Annex Indore - 452001 (MP). ...Respondent No. 8

9. Gaurav Agarwal, 204, Kalani Nagar, Indore. ...Respondent No. 9

Present

For Appellant: Mr. Ratnanko Banerjee, Sr. Advocate with Mr. Arvind Kumar Gupta, Mr. Aditya Krishnamurthy & Mr. Ashutosh Tiwari, Advocates.

For Respondents: Mr. Siram Parakkat, Mr. Mukund P Unny & Nida K., Advocates for Respondents.

-3- Comp. App. (AT) (Ins.) No. 792 of 2020

For Respondents 3, 4, Mr. Arvind Kr. Gupta, Ms. Heena George & Ms. 6 & 8: Shivani Sharma, Advocates for R-3, 4, 6 & 8.

(JUDGEMENT)

[Per; Shreesha Merla, Member (T)]

1. Aggrieved by the Order dated 29.05.2020 passed by the Learned

Adjudicating Authority (National Company Law Tribunal, Indore Bench at

Ahmedabad, Court - I), in I.A. - 212/2019 in I.A. 458/2018 in TP 161/2019 in

CP (IB) 19 of 2017, preferred by M/s. Vitol S.A. seeking to intervene in the

proceedings filed by the Liquidator of the 'Corporate Debtor' vide I.A.458/2018,

which was filed by the Liquidator seeking clarification as to whether he is allowed

to scrutinise and investigate the transactions executed by the Directors of the

'Corporate Debtor' beyond two years prior to the date of ICD and also to see the

relevant documents from the Promoters. Learned Adjudicating Authority, by the

Impugned Order dated 29.05.2020 rejected the prayer for impleadment on the

ground that there was no provision in the Insolvency and Bankruptcy Code, 2016,

(hereinafter referred to as 'The Code') that enabled 'Operational Creditors' other

than those who trigger the CIRP to be impleaded as parties and the same was

already decided by the Adjudicating Authority vide Order dated 06.11.2017 in

I.A.230/2017.

2. It is the case of the Appellant/Applicant that there is an established case of

fraud committed by the suspended Board of Directors of the 'Corporate Debtor'

and placed reliance on the International Arbitration Award dated 11.01.2011 -4- Comp. App. (AT) (Ins.) No. 792 of 2020

against the 'Corporate Debtor' which was made enforceable by the Hon'ble

Bombay High Court vide Order dated 15.09.2014. It is also submitted that by

Order dated 29.09.2016, the Division Bench of the Hon'ble Bombay High Court

upheld the Order of the Single Bench holding that the 'Corporate Debtor' has

indulged in Fraudulent Transaction of his business undertakings to defeat the

Rights of Creditors. Learned Counsel argued that this is further supplemented by

the findings of the Interim Forensic Report prepared by M/s. KPMG, the Forensic

Auditors. It is argued that the Appellant is a proper and necessary party as it has

a vested right in the present proceedings being the single largest Creditor of the

'Corporate Debtor'. The Appellant has complete knowledge of all the Fraudulent

activities committed by the 'Corporate Debtor' and hence their impleadment is

absolutely necessary.

3. Learned Counsel for the Director Mr. Amardeep Singh Bhatia vehemently

argued that Vitol S.A. is a necessary party nor proper party and that the

submissions made by them in their Application have no bearing on the issues

raised in this Appeal and that there is no provision in the Code that enables the

Creditors other than those who trigger the CIRP to be impleaded as a party and

therefore the Adjudicating Authority has rightly rejected their Application.

4. Learned Counsel for the Appellant/Applicant relied upon the following

Judgements in support of his contentions:

o 'The State of Andhra Pradesh & Anr.' Vs. 'T. Suryachandra Rao'1.

1 (AIR 2005 SC 3110) -5- Comp. App. (AT) (Ins.) No. 792 of 2020

o 'Bhaurao Dagdu Paralkar' Vs. 'State of Maharashtra & Ors.'2. o 'Kaledonia Jute & Fibres Pvt. Ltd.' Vs. 'Axis Nirman and Industries Ltd.

& Ors.'3.

o 'Ramesh Hirachandra Kundanmai' Vs. 'Municipal Corp. of Greater

Bombay & Ors.'4.

o 'Aditya Kumar Tibrewal' Vs. 'Om Prakash Pandey & Ors.'5. o 'Phoenix Arc Pvt. Ltd.' Vs. 'Spade Financial Services Ltd. & Ors.'6. o 'Institute of Chartered Accountants of India' Vs. 'Price Waterhouse &

Anr.'7.

5. Respondents 3, 4, 6 & 8 have also submitted that the Hon'ble Supreme

Court in a catena of judgements has laid down that at an Interlocutory Stage, no

such relief shall be granted beyond the scope of the main suit.

6. It is significant to mention that the execution of an Arbitral Award passed

in favour of Vitol S.A. by the Hon'ble Bombay High Court, has been challenged

and is pending before the Hon'ble Supreme Court by way of Civil Appeal No.

5694/2018.

7. We do not find any illegality in the observation of the Learned

Adjudicating Authority that there is no provision in the Code, with respect to

impleadment of any Creditor apart from the Creditors who have triggered the

2 (2005) 7 SCC 605 3 (2021) 2 SCC 403 4 (1992) 2 SCC 524 5 2022 SCC OnLine NCLAT 142 6 (2021) 3 SCC 475 7 (1997) 6 SCC 312 -6- Comp. App. (AT) (Ins.) No. 792 of 2020

CIRP. Needless to ad, the Appellant is at liberty to pursue other legal remedies,

if so advised.

8. For all the aforenoted reasons, we do not find it a fit case to discuss the

elaborate Judgements filed by the Counsel for the Appellant in support of his

argument regarding 'fraud' and 'forgery'. For the ongoing reasons, this Appeal

is dismissed accordingly. No Order as to costs.

[Justice Anant Bijay Singh] Member (Judicial)

[Ms. Shreesha Merla] Member (Technical)

Principal Bench, New Delhi 28th November, 2022

himanshu