IA 1444/2021

Under Section 60(5) of Insolvency &

Bankruptcy Code, 2016 r/w Section 424

(4) of the Companies Act, 2013

Mr. Sunil G. Kundnani

…Applicant

Vs.

Mr. Pankaj Shyam Joshi

…Respondents In the matter of

C.P.(IB) No. 2156/MB/2019

Canara Bank

Financial Creditor

Vs.

KGS Sugar & Infra Corporation Ltd.

Corporate Debtor

Order delivered on: 03.05.2024

Coram

Shri Prabhat Kumar Justice V.G. Bisht (Retd.) Hon’ble Member (Technical) Hon’ble Member (Judicial)

IA 1444/2021 C.P.(IB) No. 2156/MB/2019 A ppearances:

For the Applicant : Mr. Partho Sarkar, Advocate For the Respondent : Mr. Shyam Kapadia, Advocate ORDER Per: V.G. Bisht, Member (Judicial)

1. This Application IA 1133/2022 is filed by Mr. Sunil G. Kundnani (“Applicant”) against Mr. Pankaj Shyam Joshi, n the matter of KGS Sugar & Infra Corporation Limited (Corporate Debtor) under Section 60(5) of The Insolvency and Bankruptcy Code, 2016 ("Code"), seeking following reliefs :

a. To exclude the instant applicant as a respondent in LA

1444/2021.

b. Summoning the instant respondent U/rule 39 of NCLT rules.

c. Initiating of proceedings U/s 424(4)of the Companies Act r/w Sec 340 of Cr PC.

d. Appropriate reliefs in terms of prayer clause/s ’a to c and such other directions given the factual matrix/circumstances of the present matter.

2. The instant applicant was served with a Legal Notice dt/- 24th Dec, 20211 purportedly for & on behalf/under instructions of the captioned respondent. The order dated 7th December 2021 recites that there has been no representation from Respondent 4; inter alia causing the instant IA.

2.1. The Respondent Nos. 1 to 7 are the directors and key and personnel of the Corporate Debtor. Respondent Nos. 8 to 12 IA 1444/2021 C.P.(IB) No. 2156/MB/2019 are the persons responsible for the day to day activities of the Corporate Debtor. Respondent Nos. 13 to 27 were otherwise knowingly parties to the carrying on of the business of the Corporate Debtor for fraudulent purposes.

2.2. That the instant applicant is not a director of the company is a matter of MCA record/s, hence not dilated upon. So far as the definition of Key Managerial Personnel is concerned, a profitable reference could be drawn U/s 2 (51) & (59) of the Companies Act 2013, extracted infra:

Section 2 (51) defines key managerial personnel in relation to a company, means (i) the Chief Executive Officer or the managing director or the manager;

(ii) the company secretary; (iii) the whole-time director;

(iv) the Chief Financial Officer; and (v) such other officer as may be prescribed;

Section 2 (59) officer includes any director, manager or key managerial personnel or any person in accordance with whose directions or instructions the Board of Directors or any one or more of the directors is or are accustomed to act;

2.3. The applicant had never been the director of the company nor is its key management personnel/CFO is self-evident of MCA extract U/Exh C; wherein only CeO Debashish Mandal has been listed as key management personnel.

2.4. In the traverse of factual matrix, a misleading proceeding has been initiated by the captioned respondent against the instant IA 1444/2021 C.P.(IB) No. 2156/MB/2019 applicant; rendering the instant respondent be liable for perjury proceedings U/s 340 0f CrPC r/w Sec 424(4) of Companies Act.

2.5. In the interest of transparency the instant applicant avers that the spouse of the instant applicant had invested Rs. 50 lacs in the Corporate Debtor. There was a bonus issue in the year 2013-14 by the CD and Holding of Kashish which self- corroborates that the instant applicant could not have been construed as a related party as defined U/s 2 (76) of the Companies Act.

2.6. Cross-examining the instant Respondent Under Rule 39 of NCLT Rules is imperative to ascertain veracity of the instant averment qua the instant applicant of being Key Managerial Personnel and having indulged in Fraudulent Trading within the meaning of Sec 66 of IBC. Ratio of rulings of the Hon’ble Supreme Court relied NOUINN stated infra:

A.K. Roy V/s