9911796707
TMI Blog2024 (2) TMI 1471X X X X Extracts X X X X X X X X Extracts X X X X ..... been rejected. 2. Appellant aggrieved by the said order has come up in this Appeal. 3. Brief facts necessary for deciding this Appeal are:- I. The Appellant in this Appeal is a home-buyer having allotted residential apartment in the Group Housing Project 'Lotus Panache' of Granite Gate Properties Private Limited (GGPPL in short). Allotment Letter was issued on 01.12.2011 by GGPPL. II. A 'Corporate Insolvency Resolution Process' commenced against a group company namely M/s Vistar Construction Private Limited by Order dated 05.08.2022 in an application filed by the Pragati Impex India Private Limited. The ex-director of the Corporate Debtor challenged the Order of CIRP which order was upheld by this Tribunal by Judgment and Order dated 06th January, 2023 in C.A.(AT) Ins. No. 1431 of 2022. III. Appellant claiming to be home-buyer in a sister company of the Corporate Debtor filed an application being I.A. No. 4654 of 2023 praying for following reliefs: "a. Pass an order allowing the Applicant to intervene in the captioned matter i.e. C.P. (IB) 662 of 2022; b. Pass an order to take on record and consider the facts and documents mentioned by the present Application, while ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the captioned IA, the Applicant has virtually assailed the order dated 05.08.2022 passed in IB-662/ND/2021. Ld. Sr. Counsel P. Nagesh appearing for the Respondent opposed the application and submitted that on the challenge, the order dated 05.08.2022 passed in IB662/ND/2021 was upheld by the Hon'ble NCLAT in the Company Appeal (AT) (Insolvency) No. 1431 of 2022. He further stated that the Applicant had no direct transaction with the CD viz. Vistar Construction Pvt. Ltd. According to the Ld. Counsel for the Applicant, M/s Granite Gate Properties Pvt. Ltd. had Some transaction with the FC/CD qua the IB- 662/ND/2021. The transaction of the Applicant qua M/s Granite Gate Properties Pvt. Ltd. does not give her any locus to oppose or question the order of admitting the IB- 662/ND/2021, more so, when the admission has been affirmed by the Hon'ble NCLAT. In our considered view, the application is not maintainable. Accordingly, the same is rejected." 4. We have heard Mr. Gaurav Mitra, Learned Counsel appearing for the Appellant, Mr. Abhijeet Sinha, Learned Counsel appearing for the Financial Creditor and Mr. Pankaj Agarwal, Learned Counsel appearing for Resolution Professional. 5. Affi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... P has been initiated to get away from all liabilities of the Corporate Debtor. GGPL is already in CIRP and under the said CIRP the houses to the several thousand owners have not been given and out of receivables from amount to GGPPL the construction has to be carried out hence Appellant has locus to question the fraudulent transaction initiated by the Financial Creditor against the Corporate Debtor. It is submitted that the Corporate Debtor is group company of Three C Groups which has indulged in siphoning off fund to its group companies defrauding home-buyers including the Appellant. Appellant has filed several proceedings against its group companies of Three C Company for protection of his rights. 7. Mr. Abhijeet Sinha, Learned Counsel appearing for the Financial Creditor refuting the submissions of Appellant contends that Appellant has no locus to file the application since he has no direct transaction with the Corporate Debtor. His transaction with a group company namely GGPPL cannot be reason to file any application in CIRP of the Corporate Debtor where Appellant has no concern. It is submitted that the Financial Creditor and Corporate Debtor entered into loan agreement dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the superstructure of the resolution plan cannot sustain itself and therefore, the application for approval of resolution plan is liable to be outrightly dismissed, with exemplary costs. 5. The present case is a fit case for invoking powers under Section 65 of the Code and abate the entire CIRP process, impose penalties upon the Financial Creditor/M/s Pragati Impex India Pvt. Ltd. ("Financial Creditor"), as well as the Corporate Debtor and order an enquiry, through Insolvency and Bankruptcy Board of India ("IBBI"), upon the Ld. Resolution Professional, regarding the ex-facie illegal and fraudulent collusion between the Financial Creditor and the Corporate Debtor, proactively furthered and perpetuated by the Ld. RP. ............ 7. The fact is that the present CIRP proceedings are nothing, but a jointly premeditated, intentional and dishonest fraud being played upon this Hon'ble Tribunal, by the parties to it (the alleged Financial Creditor and the alleged Corporate Debtor), for their wrongful personal gains. Significantly, the parties to the captioned petition, in collusion and connivance with each other, have shown an ex-facie fictitious financial transaction (in fact a cri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. Ltd. and after routing through Financial Creditor Corporate Debtor same was returned to M/s. Oasis Supplier Pvt. Ltd. on the same day. 13. Appellant in his application has made further pleadings in paragraph 16, 20, 22 and 24 which are as follows: "16. It is significant to mention here that it is an admitted fact as stated by the Respondent No.1 itself in the Captioned matter, that the Corporate Debtor had approached the Respondent No.1, seeking financial assistance, in the month of April-May, 2018, following which, the Respondent No.1, had sanctioned a loan to the Corporate Debtor to the tune of INR 1,76,00,000/- out of which, after deducting some expenses, INR 1,75,81,442/- (One Crore Seventy Five Lakhs Eighty One Thousand Four Hundred Forty Two), were advanced as loan to the Corporate Debtor on 02.06.2018. The following glaring facts would go to prove that the afore stated transaction, was just a small part of the much larger siphoning off funds, their criminal round tripping and misappropriation; which has been jointly, intentionally and dishonestly, portrayed in the nature of an unpaid financial debt, to intentionally push the Corporate Debtor under CIRP, for achieving j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Application. Firstly, the admission order having been affirmed by this Appellate Tribunal, same cannot be allowed to be questioned and secondly, the Appellant has no locus to file the Application. 15. Coming to the first ground that Appellant cannot question the order admitting Section 7 Application which has been affirmed by the Appellate Tribunal. It is on record that admission order was affirmed by this Tribunal by its Judgment and Order dated 06th January, 2023. But when we look into the prayers made in application, Appellant has not prayed for recall of the admission order rather the prayer was that Company Petition be dismissed and penalty be imposed under Section 65 and further to conduct enquiries regarding the collusion. Section 65 of the Code provides as follows: "Section 65: Fraudulent or malicious initiation of proceedings.-(1) If, any person initiates the insolvency resolution process or liquidation proceedings fraudulently or with malicious intent for any purpose other than for the resolution of insolvency, or liquidation, as the case may be, the Adjudicating Authority may impose upon such person a penalty which shall not be less than one lakh rupees, but may exte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orate Debtor. We are of the view that in the facts of the present case, Appellant has locus to file the I.A. No. 4654 of 2023. Further the facts of the case required a deeper examination by the Adjudicating Authority. 18. Learned Counsel for the Respondent submitted that Application have been filed belatedly at the stage when Resolution Plan of the Corporate Debtor is under consideration. The mere fact that Application has been filed at the time when plan is under consideration does not take away the jurisdiction of the Adjudicating Authority to consider the allegations and find out the truth, if any. 19. It is well settled that when proceedings have been fraudulently initiated, the appropriate orders can be passed by Court. 20. We thus are of the view that the Adjudicating Authority committed error in rejecting the Application without considering the Application on its merit. In result, the Order dated 01.09.2023 is set aside, the Application I.A. No. 4654 of 2023 is revived before the Adjudicating Authority to be considered and decided in accordance with law. We further observe that Adjudicating Authority shall proceed to consider the Application for approval of the Resolution ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
