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2023 Supreme(Online)(NCLAT) 861
NATIONAL COMPANY LAW APELLATE TRIBUNAL PRINCIPAL BENCH, NEW DELHI In the matter of: Harish Sharma S/o Sh. Omkar Sharma, Residing at: C-44, Sector 20, Noida, Gautam Budh Nagar, U.P. – 201301. …. Appellant Vs. M/s. C & C Constructions Limited, Having Registered Office at: 74, Hemkunt Colony, New Delhi-110048. …. Respondent No. 1 Navneet Kumar Gupta, Office at: Unit No. 2, Block D1, Golf Link DDA, SECTOR 23B, POCKET 8, Dwarka, New Delhi-110077. …. Respondent No. 2 State Bank of India, Corporate Office at: State Bank Bhavan, Corporate Centre, Madame Cama Road, Mumbai-400021. …. Respondent No. 3 L&T Infrastructure Finance Co. Ltd., Registered Office at: Brindavan, Plot No. 177, C.S.T. Road, Kalina, Santacruz (East), Mumbai-400098. …. Respondent No. 4 Axis Bank Limited Registered office at: Trishul, 3rd Floor, Opposite Samartheshwar Temple, Law Garden Ellisbridge, Ahmedabad-380006. …. Respondent No. 5 Central Bank of India, Corporate Office at: Chander Mukhi, Nariman Point, Mumbai-400021. …. Respondent No. 6 ICICI Bank Limited Registered Office at: ICICI Bank towers, Near Chakli Circle, Old Padra Road, Vadodara-390007. …. Respondent No. 7 Oriental Bank of Commerce, (Now Punjab National Bank) Head Office at: Plot No. 4, Sector, 10, Dwarka, New Delhi-110075. …. Respondent No. 8 Indusind Bank Limited, Registered Office at: 2401, Gen Thimmaya Road, Pune-411001. …. Respondent No. 9 DBS Bank India Limited, Registered Office at: Ground Floor No. 11 & 12, Capital point, Baba Kharak Singh Marg, Connaught Place, New Delhi-110001. …. Respondent No. 10 SREI Equipment Finance Limited, Registered Office at: Vishwakarma 86 C, Topsia road, Kolkata-700046. …. Respondent No. 11 IDBI Bank Limited Registered Office at: IDBI Tower, WTC Complex, Cuffe Parade, Colaba, Mumbai-400005. …. Respondent No. 12 India Infrastructure Finance Co. Pvt. Ltd., Registered Office at: 5th Floor, Block-2, Plate A & B, NBCC TOWER, East Kidwai Nagar, New Delhi-110023. …. Respondent No. 13 Edelweiss Asset Reconstruction Co. Pvt. Ltd. Registered Office at: Edelweiss House, Off. C.S.T. Road, Kalina, Mumbai-400098. …. Respondent No. 14 IFCI Limited, Registered Office at: IFCI Tower, 61, Nehru Place, New Delhi-110019. …. Respondent No. 15 Asset Reconstruction Co. (India) Ltd., Registered Office at: The Ruby, 10th Floor, 29, Senapati Bapat Marg, Dadar (West), Mumbai-400028. …. Respondent No. 16 IFCI Factors Limited, Registered Office at: 7th Floor, IFCI Tower, 61, Nehru Place, New Delhi-110019. …. Respondent No. 17 Present: For Appellant: Mr. Anirban Bhattacharya, Ms. Vaishnavi Prakash, Advocates. For Respondents: Mr. Pulkit Deora, Ms. Maitreyee Mishra, Advocates for R1 and R2. Ms. Prerana Sabharwal, Advocate for R3 to 17.
JUDGEMENT
(5.7.2023) {Per.: Dr. Alok Srivastava, Member (Technical)]
1. The present appeal is preferred by the Appellant under section 61(1) of the Insolvency and Bankruptcy Code, 2016 (in short “IBC”) aggrieved by the order dated 8.2.2023 (hereinafter called “Impugned Order”) passed by the Adjudicating Authority (NCLT, New Delhi) in I.A. No. 122/2023 filed under CP(IB) No. 1367(PB)/2018.
2. The Appellant Mr. Harish Sharma has filed this appeal in the capacity of operational creditor and lead member of the consortium which seeks to submit a scheme of arrangement under section 230 of the Companies Act, 2013 vis-à-vis corporate debtor. The consortium comprises of the Appellant and Gulshan Investment Company Limited, Montage Enterprises Private Limited and Anantjeet Nutriments LLP and the Appellant is the Power of Attorney Holder of the three last named companies.
3. In brief, the case of the Appellant is that he, by virtue of two distinct Assignment Agreements both dated 15.12.2022 executed with KM Contractors and SNI Infratech respectively, became an operational creditor of the corporate debtor M/s.
C.C Constructions Limited. The Appellant has stated that the corporate debtor went in Corporate Insolvency Resolution Process (in short “CIRP”) and by order dated 7.10.2022, the corporate debtor was sent into liquidation and Respondent No. 2 (in short “R-2”) Mr. Navneet Kumar Gupta was appointed as the Liquidator. Further, the appellant has stated that the Liquidator published an invitation for submission of scheme of arrangement under section 230 of the Companies Act, 2013 on 26.10.2022, whereafter, the Appellant made a request to the Liquidator for access to the Virtual Data Room (in short “VDR”). The Appellant has further submitted that he supplied requisite documents to the Liquidator but this process could not be completed by 4.1.2023, which is 90 days limit from the date of liquidation order dated 7.10.2022, and therefore, he filed IA 122/2023 on 7.1.2023 seeking extension of timeline as mentioned in the “Invitation for Submission of Scheme” dated 26.10.2022, which was rejected by the Adjudicating Authority by the Impugned Order.
4. The Appellant has further submitted that the Liquidator eventually provided him access to VDR vide e-mail dated 19.1.2023, whereafter the Appellant and his team of experts accessed the VDR for preparation of a viable scheme under Section 232 of The Companies Act, 2013, but without waiting for the Appellant to submit such a scheme the Liquidator went ahead and published an e-auction notice dated 23.1.2023 for sale of the corporate debtor as a ‘going concern’. He has further submitted that since the first e-auction failed, a second e-auction notice with reserve price of Rs.190 crores was published by the Liquidator on 18.2.2023. He has further submitted that the Appellant has finalised a scheme of arrangement, but did not submit it since he had not been able to obtain an extension of the deadline as requested by IA No. 122/2023.
5. We heard the arguments of the Learned Counsels for both parties and perused the record with their able assistance.
6. The Learned Counsel for Appellant has argued that the Adjudicating Authority has erred in passing the Impugned Order since the liquidation of the corporate debtor would mean its certain and definite corporate death, a scheme under section 232 of the Companies Act, 2013, the Appellant led consortium can save the corporate debtor from its corporate death. He has referred to the judgment of Hon’ble Supreme Court in the matter of Arun Kumar Jagatramka v. Jindal Steel & Power Ltd.,(2021 7 SCC 474, wherein it is clearly held that a scheme under section 232 of The Companies Act, 2013 is a valid method of revival of the corporate debtor, and the IBBI (Liquidation Process) Regulations, 2016 (in short “Liquidation Process Regulations”) and a scheme under section 230 of The Companies Act, 2013 should be seen harmoniously for revival of the corporat
