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ORDER SHEET OF THE HEARING ON 18^th APRIL, 2024, : A.M.

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IA (IBC)/2/GB/2023

In CP (IB)/9/GB/2019

Present: 1. Hon’ble Member (Judicial), Shri H.V. Subba Rao

2. Hon’ble Member (Technical), Shri Satya Ranjan Prasad

Stressed Assets Stabilization Fund (SASF)

Vs

IN THE MATTER OF

Amit Pareek, RP,

2. Dilip Construction Pvt. Ltd.

UNDER SECTION U/s 60(5) of IBC, 2016.

For Petitioner (s) : Mr. Yakshay Chheda, Adv.

For Respondent (s) : Mr. Amit Pareek, CS.

ORDER

Order Pronounced through VC vide separate sheets.

Sd/- Sd/-

Satya Ranjan Prasad H.V. Subba Rao

Member (Technical) Member (Judicial)

Zeba (PS)

in CP (IB)/9/GB/2019 In the Matter of:

An Application under Section 60(5) of the Insolvency and Bankruptcy Code, 2016 read with Rule 34 of the National Company Law Tribunal Rules 2016;

-And-

In the Matter of:

Stressed Assets Stabilization Fund (SASF), Principal Office at 3^rd Floor, D Wing, IDBI Tower, WTC Complex, Cuffe parade, Mumbai-400005;

…. Applicant Versus Amit Pareek, Resolution Professional of National Plywood Industries Ltd, having its office at 4^th Floor, Ram Prasad Complex, Chatribari, Guwahati, Assam-781001;

…. Respondent No.1 -And-

Dilip Construction Private Limited, Registered Office at Plot No. L/29, Baramunda Housing Board Colony, Bhubaneshwar- 751003.

…. Respondent No.2 Shri H. V. Subba Rao : Member (Judicial)

Shri Satya Ranjan Prasad : Member (Technical)

Appearances (through video conferencing):

For Petitioner : Mr Yakshay Chheda, Adv.

For Respondent(s) : Mr Amit Pareek, CS.

Order reserved on: 21.03.2024 Order pronounced on: 18.04.2024 in CP (IB)/9/GB/2019

ORDER

1. The present application has been filed by the Applicant- Stresses Assets Stabilization Funds (SASF) under Section 60(5) of the Insolvency and Bankruptcy Code, 2016 read with Rule 34 of the National Company Law Tribunal Rules 2016, seeking the following reliefs:

i. Impugned Order dated 04.05.2022 as issued by Respondent No. 1 classifying Respondent No. 2 as a Financial Creditor of the Corporate Debtor basis an unsecured loan of Rs. 4 Crore is illegal, arbitrary and contrary to the facts & records as maintained by the Corporate Debtor.

ii. Claim of Respondent No. 2 in relation to Rs. 4 Crore to the Corporate Debtor be classified as an Operational Creditor.

iii. Pending the hearing and final disposal of the present application, an Order be passed restricting Respondent No. 2 to vote as a Financial Creditor in the Committee of Creditors of the Corporate Debtor.

2. The brief facts of the case as per the petition are as follows:

2.1 The main Petition CP (IB)/09/GB/2019 filed by the Applicant-Financial Creditor under Section 7 of the Insolvency and Bankruptcy Code, 2016 was admitted by this Adjudicating Authority on 26.08.2019 and Mr. Sandeep Khaitan was appointed as Interim Resolution Professional (IRP), who was later confirmed as the Resolution Professional (RP).

2.2 On 25 November 2019, Dilip Constructions Private Limited- Respondent No. 2 submitted its claims to the RP under two separate heads i.e. Rs. 5.91 Crore as an Operational Creditor and Rs. 4 Crore as a Financial Creditor.

2.3 Pursuant to receipt of all the claims, the RP prepared a list of Creditors as on

01.01.2020 where Respondent No. 2 was shown as a Financial Creditor as far as the amount of Rs. 4 Crore was concerned. RP called upon Respondent No. 2 for providing the accounting books. Despite assuring that it would be provided, Respondent No. 2 failed to provide the same. Later, Respondent No. 2 allegedly stated that as part of the negotiated settlement with the banks in 2006, Respondent No. 2 paid Rs 2.5 Crore on behalf of the Corporate Debtor to the Applicant and further interest free advances were made.

in CP (IB)/9/GB/2019

2.4 While initially the RP admitted the claim of Respondent No. 2 as a Financial Creditor and Operational Creditor, on 08.07.2020, the RP sent an email to Respondent No. 2 stating that upon perusal of papers, books of accounts and records of the Corporate Debtor and in the absence of any contract/agreement for the alle