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2023 Supreme(Online)(NCLAT) 2797
NATIONAL COMPANY LAW APPELLATE TRIBUNAL AT CHENNAI (APPELLATE JURISDICTION) Company Appeal (AT) (CH) (INS.) No. 331 of 2022 (Under Section 61 of the Insolvency and Bankruptcy Code, 2016) (Arising out of the `Order’ dated 22.08.2022 in IA(IBC) No. 53 of 2022 in CP(IB) No. 204/7/AMR/2019, passed by the `Adjudicating Authority’, (`National Company Law Tribunal’, Amaravati Bench, Mangalagiri) In the matter of: P.P. Bafna Ventures Private Limited Having Registered Office at No.111, World Trade Centre Tower, A.S. No. 1, Kharadi, Hs No. 1b / 2 B, Pune Maharashtra – 411014 ….. Appellant / 1st Respondent v. 1. Punjab National Bank Stressed Assets Targeted Resolution Action Division, Zonal Sastra, 6-3-865, My Home Jupally, Greenland, Ameerpet, Hyderabad – 500016 ….. 1st Respondent / 3rd Respondent 2. Purusottam Behera Insolvency Resolution Professional Registration No. IBBI/IPA-002/ IP-N00940/2019-2020/12993 Headway Resolution and Insolvency Services Pvt. Ltd. 708, Raheja Center, 7th Floor, Free Press Marg, Nariman Point Mumbai, Maharashtra – 400021 ….. 2nd Respondent / 2nd Respondent 3. KVR Industries Private Limited Represented by Mr. Kotha Venkata Rao, Former Director cum Shareholder, 15-171/1, Cheepurupalli Road, Rajam, Srikakulam District, AP – 532127 (Included as per Order dated 09.09.2022 of the Hon’ble NCLAT) ….. 3rd Respondent / Petitioner 4. Maligi Madhusudhana Reddy Resolution Professional, KVR Industries Pvt. Ltd. MM REDDY AND CO., 4th Floor, HSR Eden, Road No.2, Banjarahills, Hyderabad, Telangana – 500 034 (Included as per Order dated 09.09.2022 and 12.09.2022 of the Hon’ble NCLAT) ….. Respondent No.4 Present: For Appellant : Mr. M.S. Krishnan, Senior Advocate For Mr. Sivanandaraaj and Mr. Kaushik Ramaswamy, Advocates For Respondent No. 1 : Mr. Y. Suryanarayana, and Mr. Sachin Sarma, Advocates For Respondent No. 3 : Mr. P.H. Arvindh Pandian, Senior Advocate For Mr. Avinash Krishnan Ravi, Advocate For Respondent No. 4 / : Mr. Narasimha Sarma, Advocate CoC With Company Appeal (AT) (CH) (INS.) No. 332 of 2022 (Under Section 61 of the Insolvency and Bankruptcy Code, 2016) (Arising out of the `Order’ dated 22.08.2022 in IA(IBC) No. 54 of 2022 in CP(IB) No. 204/7/AMR/2019, passed by the `Adjudicating Authority’, (`National Company Law Tribunal’, Amaravati Bench, Mangalagiri) In the matter of: P.P. Bafna Ventures Private Limited Having Registered Office at No.111, World Trade Centre Tower, A.S. No. 1, Kharadi, Hs No. 1b / 2B, Pune Maharashtra – 411014 ….. Appellant / 3rd Respondent v. 1. KVR Industries Private Limited Represented by Mr. Kotha Venkata Rao, Former Director cum Shareholder, 15-171/1, Cheepurupalli Road, Rajam, Srikakulam District, AP – 532127 ….. 1st Respondent / 1st Respondent 2. Purusottam Behera Insolvency Resolution Professional Registration No. IBBI/IPA-002/ IP-N00940/2019-2020/12993 Headway Resolution and Insolvency Services Pvt. Ltd. 708, Raheja Center, 7th Floor, Free Press Marg, Nariman Point Mumbai, Maharashtra – 400021 ….. 2nd Respondent/2nd Respondent 3. Punjab National Bank 9-13-45/2/9/1, 8th Floor, MVR Vinayagar Plaza, CBM Compound, Vishakapatnam – 532020 (Included as per Order dated 09.09.2022 of the Hon’ble NCLAT) ….. 3rd Respondent / Petitioner 4. Maligi Madhusudhana Reddy Resolution Professional, KVR Industries Pvt. Ltd. MM REDDY AND CO., 4th Floor, HSR Eden, Road No.2, Banjarahills, Hyderabad, Telangana – 500 034 (Included as per Order dated 09.09.2022 and 12.09.2022 of the Hon’ble NCLAT) ….. 4th Respondent Present: For Appellant : Mr. M.S. Krishnan, Senior Advocate For Mr. Sivanandaraaj and Mr. Kaushik Ramaswamy, Advocates For Respondent No. 1 : Mr. P.H. Arvindh Pandian, Senior Advocate For Mr. Avinash Krishnan Ravi, Advocate For Respondent No. 3 : Mr. Y. Suryanarayana, and Mr. Sachin Sarma, Advocates For Respondent No. 4 /: Mr. Narasimha Sarma, Advocate CoC
JUDGEMENT
(Virtual Mode) Justice M. Venugopal, Member (Judicial): Comp. App (AT) (CH) (INS.) No. 331 of 2022: Introduction: The `Appellant / Financial Creditor / 1st Respondent (in IA(IBC) No. 53 of 2022) / 3rd Respondent (in (IBC) No. 54 of 2022), has preferred the instant `Company Appeals (AT) (CH) (INS.) No. 331 & 332 of 2022’, being dissatisfied with the `impugned order’ dated 22.08.2022 in IA(IBC) Nos. 53 & 54 of 2022 (Petitioner) in CP(IB) No. 204/7/AMR/2019, passed by the `Adjudicating Authority’, (`National Company Law Tribunal’, Amaravati Bench, Mangalagiri).
2. The `Adjudicating Authority’, (`National Company Law Tribunal’, Amaravati Bench, Mangalagiri) in IA(IBC) Nos. 53 & 54 of 2022 (Petitioner) in CP(IB) No. 204/7/AMR/2019, while passing the `impugned order’ dated 22.08.2022, inter alia at Paragraphs 10 to 16, had observed the following:
- resignation of ``Bafna’’ came into effect and whether the said resignation would exclude them from the category of related party and whether they can be members of CoC. The counsel for Bafna relies on a judgment of NCLAT in Sai prosperity Apartments vs.
- ASK investments services limited which held that the Insolvency Law Committee of 2020 has clarified that under the 1st proviso to Section 21(2) under the code is related not to the debt itself but the relationship between a related party and financial creditor and the corporate debtor. As such, the financial creditor who is in praesenti not a related party, would not be debarred from being a member of CoC. There is absolutely no quarrel with the above proposition. The quarrel is on the service of the Resignation letter on the Company as mandated by section 168 of the Companies Act, until which time the resignation does not come into effect. The counsel for the Applicant contends that the resignation allegedly tendered by ``Bafna’’ i.e., Mr. Praful Prakash Bafna and Mr. Yogesh Prakash Bafna did not come into effect since it was not sent to the Company in accordance with Section 168 of the Companies Act, 2013. The contention of ``Bafna’’ is that the resignation letter was sent through courier on 11.02.2022 and hence it has come into effect from the date on which it is served on the Company. The track record of the courier service was placed before this Tribunal, according to which the information pertaining to this particular courier could not be furnished to the Applicant. ``Bafna’’ however furnished the information which unfortunately shows that the consignment which was booked on 11.02.2022 by ``Bafna’’ could not be delivered due to door being locked. The Senior Counsel appearing for ``Bafna’’, prior to placing this document, on record has relied on Section 20 of the Companies Act, 2013 and Section 27 of the General Clauses Act, in support of the contention that the notice served on the CD with regard his resignation has to be deemed as served, once it is sent to the registered office of the Company by registered post or by speed post or by courier service or by leaving the register office of the Company and other mode. In this case, the resignation was sent by courier service. But it was not served on the CD even as per memo filed by the Counsel for ``Bafna’’ himself. The contention of the counsel for Bafna, is based on the fact that the resignation letter was sent to the company prior to the CD going in CIRP and hence Bafna ceases to be a related Party. There is no material placed by the FC to deny the fact that the letter was sent to the Company. But whether it is served as per section 168 is the contentious issue. Apart from that the Counsel for the FC by relying on the judgment of the High Court of Allahabad in the matter of Deepak Kumar & Others vs. State of U.P. & 6 others, contends that Section 27 of the General Clauses Act, 1897 does not take within its purview a service by private courier. It is also stated that in the above cited judgment it was held that the two conditions precedent fo
