9911796707
TMI Blog2025 (5) TMI 1031X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr. Uday Kumar B. Bhatt, Mr. Akshay Petkar, Mr. Pranav Shah, for RP/R-2 JUDGMENT Per : Justice Rakesh Kumar Jain: This appeal has been filed by the suspended director of M/s Sapura Engineering & Constructions (India) Pvt. Ltd. (Corporate Debtor), being aggrieved against the order dated 23.02.2024 passed by the National Company Law Tribunal, Mumbai Bench (in short 'Tribunal') by which an application filed under Section 9 of the Insolvency and Bankruptcy Code, 2016 (in short 'Code') bearing CP (IB) No. 519/MB/2022 by CEVA Logistics India Pvt. Ltd. (Operational Creditor) has been admitted and Uday Kumar Bhaskar Bhat has been appointed as the Interim Resolution Professional (IRP). 2. In this appeal, notice was issued on 07.03.2024 and it w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 022 in which it has been alleged that there exists no privity of contract between them because the Appellant is merely a subsidiary of the Sapura Malaysia/holding Company. 9. The Tribunal, however, though held that transaction is between the holding company and the OC but since the Appellant is subsidiary company of Sapura Malaysia and that Paresh Naik of the Appellant has digitally signed bill of lading and service orders of the holding company, therefore, the Appellant has been held liable holding that there was privity of contract between the Appellant and Respondent No. 1. 10. Counsel for the Appellant has argued that service orders clearly designate Sapura Malaysia as the buyer and the clauses in the GT & C stipulates issuance of inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and services and such a claim should be based on a contract duly entered into between the CD and OC. Counsel for the Appellant has also submitted that the Appellant is a distinct legal entity and cannot be held liable for any alleged act or omission or liabilities of its holding company. In this regard, he has referred to a decision of the Hon'ble Supreme Court in the case of Vodafone International Holding BV Vs. Union of India, (2012) 6 SCC 613 in which it has been held that holding company and a wholly owned subsidiary are two distinct legal person and the holding company does not own the assets of the subsidiary and in law the management of the business of subsidiary also vests in the board of directors. He has also relied upon a decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvice orders and has also time and again sought the details of the outstanding amount due and payable by Sapura Malaysia which is an admission of the debt by the Appellant on behalf of the holding company. It is further submitted that the Appellant is a group company of the holding company i.e. Sapura Malaysia, therefore, there is no error in the order passed by the Tribunal. 12. Counsel for Respondent No. 2 (IRP) has submitted that after the admission of the application, he took charge of the CD including its bank accounts and issued a public announcement in the newspaper on 28.02.2024. 13. From the aforesaid submissions, the issue which arises for consideration is as to whether Respondent No. 1 could have filed the application under Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by Sapura Malaysia to work on its behalf for the purpose of signing bill of lading and service orders etc., therefore, it could not be made the sole ground for establishing the relationship between the Appellant and Respondent No. 1, of the buyer and the seller, to allow the application filed under Section 9 and pushing the Appellant in the CIRP. The Hon'ble Supreme Court in the case of Vodafone International Holdings BV (Supra) has held that "the legal relationship between a holding company and WOS is that they are two distinct legal persons and the holding company does not own the assets of the subsidiary and, in law, the management of the business of the subsidiary also vests in its Board of Directors. In Bacha F. Guzdar v. CIT AIR 1955 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
