Abhishek Bharadwaj vs Avishek Gupta, Resolution Professional [Sarga Hotel Pvt. Ltd.] & Anr

1.Heard Shri Gopal Jain, Learned Senior Counsel for the Appellant, Shri Abhinav Vashisht, Learned Senior Counsel for the Respondent No. 1 and Ms. Madhavi Khanna, Learned Counsel for the Respondent No.2-Yes Bank.

This Appeal has been filed against the order dated 30.06.2022 passed by the Adjudicating Authority (National Company Law Tribunal), Kolkata Bench, Kolkata, by which order the Application filed by the Suspended Director of the Corporate Debtor, the Appellant herein has been rejected. The Appellant has filed the Application praying for following reliefs:-

“i. Stay the operation of the Expression of Interest issued by the Resolution Professional under Regulation 36A (1) of the Insolvency and Bankruptcy (Insolvency Resolution Process for Corporate Persons) Regulation, 2016 on April 28, 2022; and

ii. Stay the Appointment of E & Y Restructuring LLP as the Support Service Partner of the Resolution Professional in view of the inherent conflict of interest; and

iii. Restrain Mr. Avishek Gupta from acting as a Resolution Professional is Sarga Hotel Private Limited and exercising any rights in furtherance of the powers granted into him by any of the Order dated February 11, 2022 and/or

iv. Pass such other Order or Order (s) as may be deemed fit and proper in the facts and circumstances of the present case.”

The Adjudicating Authority has rejected the Application. Aggrieved by the said order, the Appellant has come up in this Appeal.

Shri Gopal Jain, Learned Senior Counsel appearing for the Appellant submitted that there is an order of the Delhi High Court dated 30.05.2019 passed in O.M.P.(EFA) (COMM.) 5/2019- “Rishima  Sa  Investments  LLC (Mauritius) vs. Shristi Infrastructure Development Corporation Limited & Anr.” by  which  the  Learned  High  Court  has  issued  direction  restraining  the Respondent  from  creating  any  third  party  interest  or  parting  with  the possession of Westin Hotel, Rajarhat, Kolkata. It is submitted that the said order has been affirmed by the Hon’ble Supreme Court vide its order dated 19.07.2019 in Civil Appeal No. 5696 of 2019- “Shristi Infrastructure Development Corporation Limited vs. Rishima Sa Investments LLC (Mauritius) & Anr.”. It is submitted that the said order is not in the public domain and it ought to have been clearly indicated in the Information Memorandum so that those Resolution Applicants who submit their Expression of Interests and ultimately Resolution Plan should be aware of the pending litigation.

Shri Abhinav Vashisht, Learned Senior Counsel has filed an Affidavit and submitted that both the orders have already been uploaded and part of the Information Memorandum and uploaded in VDR. It is submitted that any Resolution Applicant is fully entitled to access the Virtual Data Room and download the orders passed by the High Courts as well as the Hon’ble Supreme Court. It is submitted that the Resolution Applicants have not been kept in dark nor the said orders have been concealed. It is submitted that as per the requirements under Regulation 36 (2)(h) of the CIRP Regulations, 2016 details relating to material litigation involving the Corporate Debtor is in the Information Memorandum.

Shri Gopal Jain, Learned Senior Counsel appearing for the Appellant has also submitted that an Application has also been filed in the Delhi High Court for vacating the interim order in which the High Court on 11.07.2022 has directed that the matter be listed on 10.10.2022.

It has been submitted before us that several Resolution Applicants have shown Expression of Interests. The apprehension of the Appellant that details of litigation are not in the public domain does not appear to be correct. When the Information Memorandum and Virtual Data Room contains all orders which are uploaded, we see no reason to have any apprehension by the Appellant. Those Resolution Applicants who ultimately submit their plans are clearly aware of the litigation and they will be submitting their plans in view of the pending litigation. We, thus, do not find any error in the order passed by the Adjudicating Authority rejecting the Application.

Learned Counsel for the Appellant submitted that he has also prayed for removal of the Resolution Professional. We are of the view that for the said purpose the provisions as contained in the Code have to be resorted and it is for the Committee of Creditors to take appropriate decision.

With the observations as above, the Appeal is dismissed.