The main legal point established in the judgment is that the conditions under Section 32A of the Insolvency and Bankruptcy Code, 2016 must be satisfied for the discharge of the Corporate Debtor from criminal liabilities, and the successful resolution applicant is eligible to invoke Section 32A even when appeals against the order of the Adjudicating Authority are pending before NCLAT.

JUDGMENT

Sandeep K. Shinde, J. - Rule. Rule, made returnable forthwith. By consent of the parties, taken up for hearing forthwith.

2. Writ Petition No. 3157 of 2021 under Article 227 of the Constitution of India read with Section 482 of the Criminal Procedure Code, seeks to challenge order dated 20th August 2021, by which the learned Special Judge, CBI, Greater Bombay in exercise of jurisdiction under Section 32A of the Insolvency and Bankruptcy Code, 2016 ("IBC" for short), declined to discharge Dewan Housing Finance Corporation Limited-Corporate Debtor, from the CBI Special Case No. 830 of 2021 and permitted prosecution of the, Corporate Debtor through its erstwhile Directors (accused nos. 2 and 3) in CBI Special Case No. 830 of 2021.

3. Petitioner, in Writ Petition No. 3221 of 2021, is the successful resolution applicant, whose Resolution Plan dated 22nd December, 2020 has been approved by the Committee of Creditors of Dewan Housing Finance Corporation Limited (DHFL)-(Corporate Debtor) with an overwhelming majority of 93. 65% voting and thereafter by the National Company Law Appellate Tribunal (NCLAT), Mumbai, vide its order dated 7th June, 2021.

4. Applicant in Interim Application No. 14632 of 2021 is the erstwhile Chairman and Managing Director of Dewan Housing Finance Corporation Limited and the co-accused in Special Case No.820/2021.

5. Background facts disclosed in these petitions are as under :

(i) Dewan Housing Finance Corporation Limited (DHFL), is a Non-Banking Financial Company ("NBFC") and Financial Service Provider (FSP), regulated by Reserve Bank of India (RBI). On 20th November 2019, RBI superseded Board of Directors of DHFL owing to governance concerns and defaults in meeting various payment obligations; whereupon Shri. R. Subramaniakumar was appointed as, Administrator to manage the affairs, of the DHFL.

(ii) On November 29 2019, RBI filed Company Petition under the Insolvency and Bankruptcy (Insolvency and Liquidation proceedings of Financial Service Provider and Application to Adjudicating Authority) Rules, 2019 to initiate Corporate Insolvency Resolution Process (CIRP) against DHFL under IBC.

(iii) On December 3 2019, National Company Law Tribunal (NCLAT) admitted the said Company Petition and directed commencement of moratorium period in terms of Section 14 of IBC, from the date of filing of the Company Petition and confirmed the appointment of Administrator.

(iv) On March 7, 2020, respondent no.1-CBI registered FIR against the DHFL, its erstwhile Directors, Kapil Wadhwan (accused no.2), Dhiraj Wadhwan (accused no.3) and others including one, Mr. Rana Kapoor under Section 420 read with Section 120B of the Indian Penal Code and Sections 7, 12, 13(2) read with Section 13(1)(B) of the Prevention of Corruption Act, 1988.

(v) All the transactions which form the subject matter of the FIR were prior to initiation of CIRP against the DHFL.

(vi) On June 25 2020, CBI filed a chargesheet before the learned Metropolitan Magistrate under Section 420 read with Section 120B of the Indian Penal Code and Section 7(12), 13(2) read with Section 13(1)

(d) of the Prevention of Corruption Act.

(vii) In the meantime, as required by provisions of the IBC the Administrator appointed by NCLAT and nominated by RBI in discharge of its duties invited Resolution Plans from prospective resolution applicants to resolve the Insolvency of DHFL under the provisions of IBC.

 (viii) The Resolution Plan submitted by Piramal Capital and Housing Finance Limited ([Petitioner in Cri. Writ Petition No.3221 of 2021) was approved by majority of 93.65% of votes in the Committee of Creditors (CoC).

(ix) Pursuant, to approval of Resolution Plan by CoC and no-objection being granted to the same by RBI, on February 24, 2021 the Administrator filed an application under Section 31 of IBC, before the NCLAT (Adjudicating Authority), seeking approval to Resolution Plan of Piramal Capital.

(x) On 7th June 2021, NCLAT approved Piramal Capitals Resolution Plan for DHFL with ef