INTERLOCUTORY APPLICATION. No. 5075 OF 2023

CP(IB) No. 145/MB/C-II/2023

Application under Section 60(5) of the Insolvency and Bankruptcy Code, 2016 read with Rule 11 of

the NCLT Rules, 2016.

In the matter of

Lotus Beauty Care Products Pvt. Ltd.

124, Udyog Kshetra, Mulund Goregaon Link Road,

Mulund West, Mumbai-400080.

…Applicant

Vs.

1. Mr. Vinod Radhakrishnan Nair,

Resolution Professional of Goli Vada Pav Private Limited, Having his residential address at: A-107 /108, Om Rachana CHS Ltd., Sector-17, Vashi,

Navi Mumbai-400 703.

2. Goli Vada Pav Private Limited,

Now represented through Respondent No.01.

…Respondents

In the matter between:

Vista Processed Foods Pvt. Ltd.

…. Operational Creditor

Versus

CP No. 145/MB/C-II/2023 Goli Vada Pav Pvt Ltd. …Corporate Debtor Order Pronounced on: - 16.10.2024.

Coram:

Shri. Anil Raj Chellan : Member (Technical)

Shri. Kuldip Kumar Kareer : Member (Judicial)

Appearances (in Physical mode):

For the Applicant: Sr. Counsel Mr. Vikram Nankani a/w H.G. Dharmadhikari i/b. Ayush J. Rajani and Khushboo Shah Rajani.

For the Respondent: Adv. Amir Arsiwala.

ORDER Per: Coram.

1. This is an application under Section 60(5) of the Insolvency & Bankruptcy Code, 2016 (‘the Code’) filed by the Applicant against the Respondent seeking following reliefs:

(i) To set aside the impugned Order dated 26.09.2023 and 19.10.2023 passed by the Interim Resolution Professional;

(ii) To direct the Interim Resolution Professional to admit the Applicant being Financial Creditor in the Committee of Creditors.

CP No. 145/MB/C-II/2023

2. Essentially, the Applicant is partially aggrieved by the decision of the Respondent No.01 wherein the said Respondent, though admitted the claim of the Applicant, but refused to admit the Applicant into the Committee of Creditors (‘CoC’) of the Corporate Debtor on the ground that the Applicant is a related party to the Corporate Debtor and, therefore, as per first proviso to Section 21(2) of the Code, the Applicant shall not have any right of representation, participation or voting in a meeting of the CoC. Whereas, according to the Applicant, it is not a related party, as defined under the provisions of Section 5(24) read with Section 21(2) of the Code. Hence, the Applicant has preferred the above-captioned application impugning the decision of the Applicant inasmuch as the Applicant has not been included in the CoC by the Respondent.

Case of the Applicants in brief:

3. The Corporate Debtor was admitted into the Corporate Insolvency Resolution Process (‘CIRP’) pursuant to the Order dated 05.09.2023 which was passed on a petition filed by the Operational Creditor u/s 9 of the Code. By virtue of the admission Order dated 05.09.2023, the Respondent CP No. 145/MB/C-II/2023 No.01, namely, Mr. Vinod Radhakrishnan Nair, was appointed as the Interim Resolution Professional (‘IRP’) of the Corporate Debtor.

4. The Applicant company is a partner in Clarion Health Food LLP and one of the directors of the Applicant company is nominated as designated partner of Clarion Health Food LLP. Clarion Health Food LLP is a major shareholder holding 63.64% of the total shareholdings in the Corporate Debtor. The said designated partner till January 2020 was a director of the Corporate Debtor but was neither having any relation with any of the directors of the Corporate Debtor nor was holding any absolute decision- making power of the Corporate Debtor. The Applicant pleaded in its application that none of the directors of the Corporate Debtor were the director(s) of the Applicant company on the insolvency commencement date.

5. The Applicant company under an Inter-Corporate Deposit Agreement dated 05.12.2020 with Goli Vada Pav Pvt. Ltd had provided an inter- corporate deposit of INR 1,50,00,000/- upon the terms and conditions as stated in the agreement and against the execution of demand promissory note dated 05.12.2020.

CP No. 145/MB/C-II/2023

6. On 10.09.2023, the Applicant came across a news item in e-journal named Money Control regarding CIRP of the Corpor