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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Sangeeta K. Vishen, J.
Kishorkumar Bachuram Kapdi – Petitioner
Versus
Nitin Narang, Resolution Professional of M/S. Afcan Impex Pvt. Ltd. – Respondent
R/Special Civil Application No. 11620 of 2021
Decided On : 14-10-2021
Constitution of India, 1950 - Article 226 and 227 - Insolvency and Bankruptcy Code, 2016 - Section 7, Section 13(1)(c), Section 60(5), sub-section (2) of Section 19, 18(1)(f), 29 and 36, Section 61, 62 – Petition has been filed against M/s. Afcan Impex Pvt. Ltd. - Respondent i.e. adjudicating authority, has passed an order admitting petition and initiating CIR process of M/s. Afcan Impex Pvt. Ltd., followed by appointment of respondent as Interim Resolution Professional under Section 13(1)(c) of Code of 2016 for carrying out CIR process - It is also case of the petitioner that Committee of Creditors of respondent have appointed respondent as Resolution Professional, for entire CIR process - According to petitioner, as a part of CIR process respondent is required to carry out valuation of all properties and assets of Corporate Debtor and prepare an Information Memorandum which would be basis for prospective resolution applicants to submit their resolution plans - Whether High Court ought to interfere, under Article 226/227of Constitution, with an order passed by NCLT in a proceeding under IBC, 2016, despite availability of a statutory alternative remedy of appeal to NCLAT.
Findings of the court- Apex Court while referring to judgment in case of Innoventive Industries Ltd. (supra) wherein, it has been held that Code of 2016 is an exhaustive Code in the subject matter of insolvency in relation to corporate entities and others - Proposition propounded by Apex Court, is that the Code of 2016, is single unified umbrella Code covering entire gamut of law relating to insolvency resolution of corporate persons and others in a time bound manner - So far as, personal guarantors are concerned, Apex Court has observed that if any orders are passed by Tribunal, orders are appealable to National Company Law Appellate Tribunal under Section 61 of Code of 2016, and orders of Appellate Tribunal, are amenable to appellate jurisdiction of Apex Court under Section 62 - Code of 2016 is a Code unto itself, providing for inbuilt mechanism - Section 61 of Code of 2016 provides for appeals which starts with non-obstante clause - Any person aggrieved by order of adjudicating authority, has a liberty to prefer an appeal before Appellate Tribunal and further appeal before Supreme Court on question of law arising out of order, if any, passed by Appellate Authority under Code of 2016 - Therefore, there is an efficacious alternative remedy available to petitioner to ventilate his grievance - In view of
aforesaid law enunciated by Apex Court, and fact that efficacious alternative remedy is available to petitioner, Court is of opinion that prayer prayed for by petitioner does not deserve to be granted, invoking extra-ordinary jurisdiction under Article 226 of Constitution of India.
Result - Petition dismissed
ORDER :
1. By this petition, under Article 226 and 227 of the Constitution of India, the petitioner, has prayed for appropriate order or direction directing the respondent no. 1 to get the valuation of the stock value afresh through an IBBI registered valuer and with a further direction to the respondent no. 1 not to consider the valuation report dated 30.04.2021 for the purpose of the Corporate Insolvency Resolution Process(hereinafter referred to as ‘CIR process’) of M/s. Afcan Impex Pvt. Ltd.
2. The brief facts of the case are:
2.1. That M/s. Afcan Impex Pvt. Ltd. is a MSME Unit and Kandla- SEZ. The petition has been filed under Section 7 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as ‘the Code of 2016’) against M/s. Afcan Impex Pvt. Ltd.. The respondent no. 3 i.e. adjudicating authority, has passed an order dated 17.02.2021 admitting the petition and initiating the CIR process of M/s. Afcan Impex Pvt. Ltd., followed by appointment of respondent no. 1 as Interim Resolution Professional under Section 13(1)(c) of the Code of 2016 for carrying out the CIR process. It is also the case of the petitioner that the Committee of Creditors of the respondent No. 2 have appointed the respondent no. 1 as the Resolution Professional, for the entire CIR process. According to the petitioner, as a part of the CIR process the respondent no.1 is required to carry out valuation of all the properties and assets of the Corporate Debtor and prepare an Information Memorandum which would be the basis for the prospective resolution applicants to submit their resolution plans.
2.2 It is the case of the petitioner that the IRP/RP had got the valuation of the stocks carried out by a Chartered Accountant Firm viz. M/s. Chirag L. Thacker & Co., which had prepared the Stock Audit Report/Valuation Report dated 30.04.2021. The said valuation report was circulated in the second CoC Meeting held on 05.05.2021. The petitioner, is aggrieved by the said Valuation Report dated 30.04.2021, wherein the goods worth Rs. 5 Crores are sought to be valued at approximately Rs.10,00,000/-. This led to the filing of an application on 29.06.2021 before the respondent No. 3 numbered as IA No. 480/2021 in CP (IB) No. 280/2020 inter alia praying for Stock Audit Report/Valuation Report dated 30.04.2021 to be set aside with a further direction to the respondent not to consider the Stock Audit Report.
2.3 The application was listed for hearing and after hearing, the adjudicating authority had issued a notice to the respective parties with a further direction to them to file the reply and the matter, was ordered to be listed for further consideration on 21.09.2021. According to the petitioner, the application should have been heard at the earliest failing which, the hearing of the application would be rendered academic, since the last date for submission of the resolution plan was 16.08.2021. Being aggrieved, the petitioner has filed the captioned writ petition with the aforementioned prayers. So far as prayer 16(a) is concerned Mr. Chudgar learned advocate appearing for the petitioner, states that the said prayer, by efflux of time, has been rendered infructuous.
3. The respondent no. 1 being the Resolution Professional, has filed its reply dated 26.08.2021, inter alia, pointing out that the present writ petition, is neither maintainable nor sustainable in the eyes of law inasmuch as, the petitioner has already invoked the jurisdiction of the National Company Law Tribunal, Ahmedabad Bench, Ahmedabad (hereinafter referred to as "the Tribunal”) by way of filing an application being I.A. No. 480/2021 seeking similar reliefs i.e. the Court having the jurisdiction in terms of Section 60(5) of the Code of 2016. It is also pointed out that the application filed by the respondent no. 1 against the petitioner under the provisions of sub-section (2) of Section 19 of the Code of 2016, is also pending before the Tribunal which, will be decided and therefore, the reliefs so
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