TMI Blog2021 (10) TMI 940X X X X Extracts X X X X X X X X Extracts X X X X ..... Ld. Adjudicating Authority the Appellant has not filed claim before the IRP - there is no illegality in the impugned order - Appeal dismissed. - Company Appeal (AT) (Insolvency) No. 634 of 2020 - - - Dated:- 21-10-2021 - [Justice Anant Bijay Singh] Member (Judicial) And [Ms. Shreesha Merla] Member (Technical) For the Appellant: Mr. Rakesh Kumar, Ms. Preeti Kashyap and Mr. Ankit Sharma, Advocates For the Respondents: Mr. Gautam Singh (RP), for R-1 2 JUDGMENT Justice Anant Bijay Singh ; This Appeal has been preferred by the Appellant (Intervenor, before the National Company Law Tribunal, Chandigarh Bench, Chandigarh) aggrieved and dissatisfied by the judgment dated 29.05.2020 passed by the Adjudicating Authority (National Company Law Tribunal), Chandigarh Bench, Chandigarh in CP (IB) No. 5/Chd/Hry/2019 And CA No. 519/2019 whereby and where under the application filed by the Respondent No. 1 (herein) under Section 10 of the Insolvency and Bankruptcy Code, 2016 (for short IBC) was admitted and appointed the Interim Resolution Professional and rejected the CA No. 519/2019 filed by the Appellant (herein). 2. The facts giving rise in the instant Appeal are a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heard with regard to the dispute being raised by the Appellant. 4. From the perusal of the order dated 09.04.2021 reveals that the Learned Counsel for the Appellant taken substituted service of notice by way of paper publication dated 27.02.2021 on Respondent No. 3, despite he failed to appear and the matter proceeded ex-parte. Submissions on behalf of the Appellant 5. The Learned Counsel for the Appellant during the course of argument and his memo of Appeal as also Written Submissions submitted that the Appellant is the Operation Creditor and having a claim of ₹ 3,48,41,071/- against the Corporate Debtor through the Arbitration Award. 6. It is further submitted that the Corporate Debtor registered office and operation office was at Block G, Greenwood City, Sector 40, Gurgaon, Haryana 122001 (which is hereinafter referred to as said premises ). The said premise was owned by the Appellant. The Appellant had given on lease the said premises to Corporate Debtor. It is due to the outstanding lease rent, the Appellant was the Operational Creditor of the Corporate Debtor. 7. It is further submitted that the Section 10 petition was filed by the Corporate Debto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f partners of the Corporate Debtor, as the case may be, approving filing of the Application. Submissions on behalf of Respondent Nos. 1 and 2. 14. Learned Counsel appeared on behalf of Respondent No. 1 and 2 and filed his status report. From the perusal of the status report it appears that on 29.05.2020 in CP (IB) No. 5/Chd/Hry/2019 admitted the application under Section 10 of the IBC and the Respondent No. 2 appointed as Interim Resolution Professional having IP registration No. IBBI/IPA-002/IP-N00137/2017-18/10352. Public announcement in the prescribed form A inviting claims, were duly made by the IRP in two newspapers on 30.05.2020, in English in the Financial Express and in Hindi in Jansatta both editions were being published from Delhi. 15. On 01.06.2020, the IRP emailed a letter to Corporate Debtor i.e. Bourn Hall International India Private Limited and to the directors / members of suspended board of Corporate Debtor in respect to commencement of CIRP and appointment of Mr. Maadan Gopal Jindal as IRP and requested for providing following information / documents / handing over the control and custody of the assets:- a) particulars of directors of suspe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her reveals that the assets of Corporate Debtor are in the control and custody of M/s RNY Healthcare Services Private Limited. The IRP visited the registered office of the Corporate Debtor on 09.06.2020 and met Mr. Parmanand Yadav, who is one of Directors of M/s RNY Healthcare Services Private Limited, which has presently control and custody of maximum assets (including 400, approx.) embryos as well as records of the Corporate Debtor. Mr. Yadav informed the IRP that he has obtained the same by virtue of getting an award from the Arbitrator in favour of M/s RNY Healthcare Services Private Limited, as the Corporate Debtor, owed to it lease money. In fact, M/s RNY Healthcare Services Private Limited is the owner of premises, whereat, the registered office of the Corporate Debtor is situated, was taken on lease by the Corporate Debtor. Resolution Professional has made M/s RNY Healthcare Services Private Limited as one of the party at the time of filing an application under the provisions of Section 19(2) of IBC, 2016 against the Corporate Debtor and others. 19. Status report further reveals that on 02.06.2020, the IRP emailed a letter to the statutory auditors of the Corporate Debto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rofessional (RP) and thereafter 2nd and 3rd COC meetings were3 held on 30.09.2020, 23.11.2020 respectively through video conferencing meet and the fourth and the last meeting was held on 12.02.2021 at Gurgaon, where at only member of CoC was present physically besides the Chairman of the meeting i.e. RP. 24. Status report further reveals that due to not handing over the control and custody of assets, the Resolution Professional could not make compliance of the various Sections of the IBC, 2016 and Regulations made thereunder, as details given below: a. Pursuant to Regulation 27 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016, the RP has not appointed registered valuers for the determination of fair value and liquidation value of the assets of Corporate Debtor. b. Pursuant to Regulation 36 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016, the RP has not prepared and submitted any Information memorandum, since RP is yet to receive books of accounts, audited financial statements ending 31.03.2018, 31.03.2019, 31.03.2020 and provisional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , challenging the Award of the Ld. Arbitrator for an amount of ₹ 3,48,41,071/- on 06.02.2019 in favour of M/s RNY Healthcare Services Private Limited in Arbitration No. 87 /2018, which is pending. 30. Status report further reveals that on the directions of COC and duly authorised, by passing an resolution with 100% voting share at the meeting held on 12.02.2021, the RP filed an application under the provisions of Section 33(1) and 33(2) of IBC, 2016 before the Ld. Adjudicating Authority for initiation of liquidation process against the Corporate Debtor subject to Appeal pending before this Tribunal. FINDINGS 31. After hearing the parties and having gone through the records of the case and also Written Submissions on behalf of the Appellant along with Status Report filed on behalf of the Respondent Nos. 1 and 2, we are of the considered view that the following facts are admitted in the instant Appeal. The Respondent No. 1 Bourn Hall International India Pvt. Ltd. filed application under Section 10 of the IBC before the NCLT, Chandigarh Bench, Chandigarh which was numbered as CP (IB) No. 5/Chd/Hry/2019 in provisions of prescribed Form-6 and the Form was signed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bourn Hall International India Private Limited Others and next date in the matter on 19.08.2021. Further, Ld. Adjudicating Authority dismissing the intervention application filed by the Appellant herein and directed the intervenor to file claim before the IRP and the IRP was directed to consider the claim during CIRP. But this direction was not complied by the Appellant herein and he has not filed any claim as it is apparent in the status report filed by the Respondent No. 2. Taking all these facts and circumstances and the judgment (supra) is not applicable in the facts of the case. We are of the considered view that the Appellant have not come with clean hand before this Tribunal and despite directions passed by Ld. Adjudicating Authority the Appellant has not filed claim before the IRP. ORDER 32. We are of the considered view that there is no illegality in the impugned order and we hereby affirm the judgment dated 29.05.2020 passed by the Adjudicating Authority (National Company Law Tribunal), Chandigarh Bench, Chandigarh and Ld. Adjudicating Authority has rightly rejected the application filed by the Appellant (herein) in CP (IB) No. 5/Chd/Hry/2019 And CA No. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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