2023 Supreme(Online)(NCLAT) 14
NATIONAL COMPANY LAW APPELLATE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
COMPANY APPEAL (AT) (Insolvency) No. 879 of 2021
(Arising out of the Order dated 13.10.2021 passed by the National
Company Law Tribunal, Jaipur Bench, Jaipur in CP No. IB 291/7
/JPR/2019.)
IN THE MATTER OF:
Present
For Appellant:
Ms.
Archana
Pathak
Dave,
Ms.
Ankita
Chaudhary, Mr. Shrayas Balaji & Mr. Vaibhav
Dwivedi, Advocates.
For Respondents:
Mr. Prabhash Sharma, for R-1/ IRP.
Pankaj Khandelwal,
S/o Shri Goverdhan Bhavwar Khandelwal,
Aged about 48 years,
R/o of B-2002, Gokul Concorde,
Thakur Village, Kandivali (E), Mumbai
Also At :-
233, Sonthalio Ka Rasta,
Kishan Pole Bazaar, 302001.
Nominal Partner Of A. Gangwal Real Estate L.L.P.
Having Its Office At The Crest,
Suite No. 9, Plot No. 4A,
Airport Enclave Scheme,
Tonk Road, Jaipur, Rajasthan – 302018.
…Appellant
Versus
1. A. Gangwal Real Estate L.L.P,
Through IRP Mr. Prashant Sharma
Having his Office At V.P. Sharma & Associates,
611, Arcade, 6th Floor, K-12,
Malviya Marg, C- Scheme, Jaipur – 302001.
…Respondent No. 1
2. Shankar Khandelwal
Through Tikam Khandelwal,
R/o Plot No. 171,
Officer Campus Extension,
Near Sanskar School,
Sirsi Road, Jaipur 302012
…Respondent No. 2
-2-
Comp. App. (AT) (Insolvency) No. 879 of 2021 & 270 of 2022
Mr. K. Dutta, Sr. Advocate along with Mr. Ankit
Sareen, Mr. Yash Tandon & Mr. Gaurav, for R-2.
With
COMPANY APPEAL (AT) (Insolvency) No. 270 of 2022
(Arising out of the Order dated 13.10.2021 passed by the National
Company Law Tribunal, Jaipur Bench, Jaipur in CP No. IB 291/7
/JPR/2019.)
IN THE MATTER OF:
Present
For Appellant:
Mr. Anuj Bhandari & Mr. Rajat Gupta, for RIICO.
For Respondents:
Mr. K. Dutta, Sr. Advocate along with Mr. Prakul
Khuran, Mr. Gourav Asati & Mr. Yash Tandon,
for R1.
Mr. Prabhash Sharma, for R-2/ IRP.
Rajasthan State Industrial Development and
Investment Corporation Limited,
Having its registered office at Udyog Bhawan,
Tilak Marg, C- Scheme,
Jaipur, Rajasthan through its authorised
representative.
…Appellant
Versus
1. Shri Shankar Khandelwal
Through Shri Tikam Khandelwal
171, Officers Campus Extension
Near Sanskar School, Sirsi Road
Jaipur, Rajasthan - 302012
…Respondent No. 1
2. A. Gangwal Real Estate LLP
The Crest Suite No. 9
Plot No. A-4
Airport Enclave Scheme
Tonk Road,
Jaipur, Rajasthan - 302018
…Respondent No. 2
-3-
Comp. App. (AT) (Insolvency) No. 879 of 2021 & 270 of 2022
(07.12.2023)
NARESH SALECHA, MEMBER (TECHNICAL)
1.
There are two Appeals i.e., Company Appeal (AT) (Insolvency) No. 879
of 2021 and Company Appeal (AT) (Insolvency) No. 270 of 2022 filed under
Section 61(1) of the Insolvency and Bankruptcy Code, 2016 (in short ‘Code’)
against the common Impugned Order dated 13.10.2021 passed by the
National Company Law Tribunal, Jaipur Bench (in short ‘Adjudicating
Authority’), whereby the Adjudicating Authority admitted the Application
filed by the Respondent No. 2 in Company Appeal (AT) (Insolvency) No. 879 of
2021 and Respondent No. 1 in Company Appeal (AT) (Insolvency) No. 270 of
2022 i.e., Shankar Khandelwal as Financial Creditor under Section 7 of the
Code. Mr. Pankaj Khandelwal is the Appellant in Company Appeal (AT) (Ins.)
No. 879 of 2021 and Rajasthan State Industrial Development and Investment
Corporation Limited (for short ‘RIICO') is the Appellant in Company Appeal
(AT) (Insolvency) No. 270 of 2022.
2.
The Corporate Insolvency Resolution Process (in short ‘CIRP’) was
initiated against A. Gangwal Real Estate L.L.P who is the Corporate Debtor
and the Respondent herein. A moratorium was declared under Section 14 of
the Code.
3.
Since both appeals have been preferred before us against the same
common Impugned Order dated 13.10.2021 and are based on same or similar
facts and were also heard conjointly, as such we will examine both these
appeals together in coming discussions and will decide by single order.
-4-
4.
Heard the Counsel for the Parties, perused the records made available
including cited judgements.
5.
The Corporate Debtor, “A. Gangwal Real Estate L.L.P”, a Limited
Liability Partnership (in short "LLP"), was incorporated on August 5, 2014
under the provisions of the Limited Liability Partnership Act, 2008. It has
further been informed that the Corporate Debtor as LLP has undergone
various changes since its incorporation, in respect of admission and
retirement of designated partners and nominal partners.
6.
The Corporate Debtor was formed initially with Mr. Ajay Gangwal and
his wife Mrs. Rakhi Gangwal as designated partners, having a 50:50 profit
sharing ratio, with capital contribution of Rs. 50,000/- each. Thereafter, Mr.
Ajay Gangwal and Mrs. Rakhi Gangwal retired from A. Gangwal Real Estate
LLP and vide a supplementary agreement dated September 25, 2014, Mr.
Shankar Lal Khandelwal, the Respondent No. 2 Company Appeal (AT)
(Insolvency) No. 879 of 2021 and Respondent No. 1 in Company Appeal (AT)
(Insolvency) No. 270 of 2022 and his wife Mrs. Guman Khandelwal were
admitted as designated partners along with the Corporate Debtor. It has been
brought out that at present the designated partners of the Corporate Debtor
are Narendra Singh Lakshman Singh Rathod and Charan Singh Khangrot
besides Mr. Pankaj Khandelwal and Mudit Danagyach at its nominal
partners.
7.
It has been alleged by the Appellant that during the tenure of Shankar
Khandelwal being a Partner of the LLP, the Corporate Debtor obtained a Loan
from RIICO which after being credited to the Bank Account of the Corporate
-5-
Debtor, the said amount was transferred immediately to the accounts of
concerns which were either family owned companies of Shankar Khandelwal
or his family members. It is the case of the Appellant that when such fraud
was tracked, Shankar Khandelwal allegedly admitted such transfer upon
personal fund requirements and also agreed to adjust the same with his
outstanding loans with the Corporate Debtor along with his retirement from
the LLP/ Corporate Debtor.
8.
It is the case of the Appellant that Shankar Khandelwal was arrested
in SYNDICATE BANK SCAM as one of the main accused and was taken into
custody where he remained for more than two years.
9.
It has been submitted that the LLP Agreement dated 31.12.2015 is the
Agreement which incorporates the retirement of the Respondent Shankar
Khandelwal from the Corporate Debtor w.e.f. 01.04.2016. It is the case of the
Appellant that the entire outstan