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TMI Blog2022 (12) TMI 1057X X X X Extracts X X X X X X X X Extracts X X X X ..... yas, Mr. Krishna S., Ms. Neha Agarwal, Advocates for R3 JUDGMENT Ashok Bhushan, J. Two orders dated 28.11.2022 (in order sheet) and 05.12.2022 passed by the Adjudicating Authority (National Company Law Tribunal), Court-1, Mumbai Bench in C.P.(IB) No. 494(MB)2019 have been challenged by separate Appeals by 'SREI Equipment Finance Ltd.' and 'IIRF India Realty XII Ltd.'. All the Appeals have been heard together and are being decided by this common order. 2. We need to notice only the brief facts of the case which are necessary for deciding these Appeals. 2.1. C.P.(IB) No. 494(MB)2019 was filed by 'SREI Equipment Finance Ltd.' (one of the Appellants before us) against the Corporate Debtor- 'Shree Ram Urban Infrastructure Limited' under Section 7. By an order dated 06.11.2019, the Corporate Insolvency Resolution Process (CIRP) was initiated against the Corporate Debtor by the Adjudicating Authority and Srigopal Choudhary, the Respondent No.1 was appointed as Interim Resolution Professional (IRP) of the Corporate Debtor. On 06.01.2022, the appointment of Srigopal Choudhary was confirmed as the Resolution Professional (RP) by the Adjudicating Authority. The Appellants- 'IIRF India Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2022, disposing of the above three Applications, the Adjudicating Authority directed the counsel present for three Applicants to decide the name of Resolution Professional mutually, and submit the same by way of Affidavit/Memo during the course of the day, failing which the Bench was to appoint suitable Resolution Professional. 2.4. A Joint Memo on behalf of 'SREI Equipment Finance Ltd.'- Applicant in IA 2621 of 2021 and 'IIRF India Realty XII Ltd.'- Applicant in IA No.1304 of 2022 was filed praying that one Mr. Avil Jerome Menezes be appointed by Tribunal as the new Resolution Professional. A written consent in Form AA by Mr. Avil Jerome Menezes was also submitted along with the Memo. A Memo was also filed by 'Indiabulls Housing Finance Ltd.' and 'UV Asset Reconstruction Company Limited' suggesting three names of the Resolution Professionals, including the name of Mr. Sapan Mohan Garg, the said Memo was signed by Advocate appearing for 'Indiabulls Housing Finance Ltd.' and 'UV Asset Reconstruction Company Limited' whereas in the heading of the Memo IA No. 3537/2022 and IA No. 2621/2021 was also mentioned. The Adjudicating Authority on the same date 28.11.2022 (in order sheet) pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as on behalf of 'Indiabulls Housing Finance Ltd.' and 'UV Asset Reconstruction Company Limited', although in the heading of the Application it was wrongly claimed that it was on behalf of 'SREI Equipment Finance Ltd.'- Applicant in IA No. 2621 of 2021. There being no mutual name agreed by Applicants, the Adjudicating Authority committed error in appointing Mr. Sapan Mohan Garg who was requested to be appointed by 'Indiabulls Housing Finance Ltd.'. It is submitted that the Adjudicating Authority has incorrectly observed in the order that Applicants in IA No. 3537 of 2022 and I.A. No. 2621 of 2021 have jointly mentioned the name which mistake has subsequently corrected by the Adjudicating Authority itself by order dated 05.12.2022. The Adjudicating Authority having noticed that there was no consensus in the Applicants, the Adjudicating Authority ought to have appointed Resolution Professional as requested by Applicants of IA No. 2621/2021 and IA No. 1304/2022 who claim to be having vote share of more than 69%. It is submitted that there was no occasion for accepting the name recommended by 'Indiabulls Housing Finance Ltd.'. 5. Shri Krishnendu Datta, Learned Senior Counsel appearing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he has already filed Appeal against the order dated 28.11.2022 removing Srigopal Choudhary as Resolution Professional being Company Appeal (AT) (Ins.) No. 1443 of 2022 where the order is reserved. It is submitted that this Tribunal may not make any observation in this regard while deciding these Appeals which shall have any prejudicial effect on the rights of Srigopal Choudhary. 8. We have considered the submissions of the parties and perused the record. 9. We may first notice the objection of Shri Vikram Nankani regarding locus of 'SREI Equipment Finance Ltd.' to file the Appeal. It is submitted that 'SREI Equipment Finance Ltd.' itself is in CIRP, hence, the authorized person who has filed the Appeal i.e. Mr. Pradeep Faujdar, Senior Vice President- Legal is not competent to maintain the Appeal. 10. Shri Krishnendu Datta, Learned Senior Counsel appearing for 'SREI Equipment Finance Ltd.' refuting the submission of Counsel appearing for 'Indiabulls Housing Finance Ltd.' submits that Appellant- 'SREI Equipment Finance Ltd.' has disclosed all relevant facts in the Appeals and Appeals have been filed by competent person. He has referred to para 7.1 of the Company Appeal (AT) (Ins.) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the course of the day, failing which the Bench shall appoint suitable RP considering the facts of the case. In compliance to above Order Applicants in IA No. 3537/2022 and IA No. 2621 have jointly mentioned the names of three RPs, which are as follows: S. No. Name Registration Number 1. Ms. Preeti Gandhi IBBI/IPA-001/IP-P-02751/2022-2023/14185 2. Mr. Neehal Mahamulal Pathan IBBI/IPA-001/IP-P-01561/2018-2019/12406 3. Mr. Sapan Mohan Garg IBBI/IPA-002/IP-N00315/2017-2018/10903 Applicant in IA No. 1304/2022 has mentioned name one Mr. Avil Jerome Menezes, having Reg. No. IBBI/IPA-001/IP-P00017/2016-17/10041, in its application itself. We have noticed that there is no consensus of the applicants on any one name to be appointed as RP. In the circumstances we appoint Mr. Sapan Mohan Garg, having Reg. No. IBBI/IPA-002/IP-N00315/2017-18/10903 as an RP of Shree Ram Urban Infrastructure Limited in place of Mr. Srigopal Choudhary who is directed to be discontinued with immediate effect." 14. Two significant steps were taken on 28.11.2022 by the Applicants. On 28.11.2022, a Joint Memo was filed by 'SREI Equipment Finance Ltd.' and 'IIRF India Realty XII Ltd.'. The Joint Mem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter, alia, replacement of the Resolution Professional of Shree Ram Urban Infrastructure Ltd. The said IAs were heard at length by this Hon'ble Tribunal on 24.11.2022 and order were reserved in the matter. 2. When the matter was taken up for pronouncement of judgment on 28.11.2022, the Hon'ble Tribunal indicated that it had allowed the applications for replacement of the RP. However, since no RP had been suggested in the applications, it was orally directed that a Memo be filed suggesting a suitable person to be applied as the RP. This Memo is being filed in terms of the aforesaid direction. 3. Whereas there is no consensus between the Financial Creditors on a proposed resolution Professional, we are suggesting three names. It is humbly prayed that this Hon'ble Tribunal may be pleased to appoint either of the three persons mentioned below as the Resolution Professional : (i) Ms. Preeti Gandhi, (ii) Ms. Neehal Mahamulal Pathan, or (iii) Mr. Sapan Mohan Garg as the RP of the Corporate Debtor and Mr. Sri Gopal Chaudhary be relieved of his duties. The details of Ms. Preeti Gandhi (mobile no. 9582977899) or Mr. Neehal Mahamulal Pathan (mobile no. 9822043344) and Mr. Sapan Mohan Garg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eet), it is clear that the Adjudicating Authority has noted that Applicants in IA No. 2621 of 2021 and IA No. 3537 of 2022 has jointly mentioned the names of three Resolution Professional whereas the fact of the matter is that three names were only mentioned in the Memo filed by 'Indiabulls Housing Finance Ltd.' i.e. Applicant in IA No. 3537 of 2022. The Adjudicating Authority was also clear that there is no consensus of the Applicants on any one name to be appointed as Resolution Professional. When we look into the order dated 28.11.2022 (in order sheet), the order begins with the words "Order pronounced in Open Court and All IA's are allowed. With regard to the name of the RP, Ld. Counsel appearing for the Applicants present and are directed to decide the name of RP mutually, and submit the same by way of Affidavit/ Memo on record during the course of the day, failing which the Bench shall appoint suitable RP considering the facts of the case." 18. The above order emphasizes two things, firstly Counsel for the Applicants to decide the name of Resolution Professional mutually and further failing which the Bench shall appoint suitable Resolution Professional considering the facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essional as it deem fit and proper. 21. We may notice one more aspect of the matter. The order of the Hon'ble Supreme Court passed on 12.12.2022 in Civil Appeal No. 9062/2022 has been perused by us. The Hon'ble Supreme Court has referred to order passed in Civil Appeal No. 7050/2022 which order dated 14.11.2022 is to the following effect:- "C.A. No. 7050/2022 Learned senior counsel for the appellant, on instructions states that the appellant is willing to bring in the money in terms of the arbitral award, approximately Rs. 75.30 crores in the corporate creditors' account and the Resolution Professional will execute the sale deed on the said amount being so deposited. He submits on instructions that the amount will be deposited within 10 days. On the aforesaid statement taken on record, learned counsel for respondent No.1 who is the appellant before the NCLAT submits that if the amount is brought in, the sale deed can be executed by the Resolution Professional and the appeal filed by the respondent No.1 before the NCLAT would stand withdrawn. In view of the aforesaid, we direct as under: 1) The amount be deposited within a period of 10 days stipulated, as aforesaid; 2) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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