Jayanta Banerjee vs Incab Industries Limited

ORDER

I.A. (IB) No. 1035/KB/2021

a. Declaration to exclude the entire time spent by erstwhile IRP/RP/Liquidator Shashi Agarwal w.e.f 07/08/2019 till 16/12/2019 and 12 days till the new IRP was appointed [is the only aggregate time required for exclusion from the CIRP as the rest i.e., from 17th December 2019 till 04/06/2021 has already been excluded by the Hon'ble NCLAT (Para 88(c)]] in view of removal of the Shashi Agarwal as IRP/RP/Liquidator by the Hon'ble NCLAT Order dated 04/06/2021;

b. Direction to the IRP/RP to intervene in the ongoing proceeding before the Hon'ble Bombay High Court in Misc. Petition Nos. 40 & 30 both of 2000 and all connected applications therein before THE SPECIAL COURT (TRIAL OF OFFENCES RELATING TO TRANSACTIONS IN SECURITIES) ACT, 1992 under the judicature of the Hon'ble Bombay High Court with prayer to stay the proceedings with further direction to all the purported operational and financial creditors agitating under the said proceedings to file all their claims before the proceeding undergoing before this Hon'ble Bench under IBC and also with further direction to declare the appointment of Custodian as invalid allowing the IRP/RP to take control and possession of the assets under the Custodian appointed by the Hon'ble Special Court under the judicature of the High Court of Bombay;

c. To implead the Banks, FIs and ARC which have illegally assigned the debts to the private parties and hear the issue of assignment of debts in view of the setting aside the Order dated 07/02/2020 by the Hon'ble NCLAT vide its final Judgment and Order dated 04/06/2021;

d. Direction for Forensic Inquiry and/or Internal Audit by the new Statutory Auditor to be appointed by this Hon'ble Bench or any Internal Auditor which this Hon'ble Bench may be pleased to appoint, into the allegations of fraud and misappropriation committed by the Respondent No.27;

e. Direction for inquiry into the affairs of the Corporate Debtor relating to the fraudulent transactions in terms of the provisions of Section 69 of the IBC;

f. Direction for the Special Court pursuant to Section 236 of the IBC to take cognizance of the offences committed under Section 409, 420, 467 of IPC, 1860 read with Section 447 of the Companies Act, 2013 read with other applicable provisions of IPC, Companies Act and IBC and proceed against the accused persons;

g. Consequential directions into the gigantic fraud committed by M/s Kamala Mills Ltd., M/s Fasqua Investment Pvt. Ltd, Ramesh Ghamandiram Gowani, Yadappa Ramappa Kori, Mahendra Bakthawar Shah and Kesri Nariman Amaria, the later three all Ramesh Ghamandiram Gowani's men, Universal Leader and the two IRP/RPs/Liquidator;

h. Any other direction that the Hon'ble Bench may deem fit and proper for the proper adjudication of issue.

“4. IA(IBC)/226(KB)2021

(i)

This application has been on Board since 18/01/2021. The applicant in this application has sought the following reliefs:

(a)

Declaration of all sales, transfer, alienation of assets and properties of the Corporate Debtor effected by all the officers in default and the charges created on its assets and properties after 1985 is invalid, null and void;

(b)

Direction for internal audit to determine the total money misappropriated by the officers in default including Ramesh Ghamandiram Gowani from1985 till date and consequential direction for mechanism to recover the entire amount legally accruing and belonging to the Corporate Debtor;

(c)

Inquire into the affairs of the Corporate Debtor relating to the fraudulent transactions in terms of the provisions of Section 69 of the IBC;

(d)

Direct the Special Court pursuant to Section 236 of the IBC to take cognizance of the offences committed under Section 409, 420, 467 of IPC, 1860 read with Section 447 of the Companies Act, 2013 read with other applicable provisions of IPC, Companies Act and IBC and proceed against the accused persons;

(e)

Any other direction that the Hon’ble Bench may deem fit and proper for the proper adjudication of issue.

(ii)

When the Ld. Counsel for the applicant was asked as to what provisions of the IBC he has made this application, Ld. Counsel for the applicant could not give any reason. There is no question of keeping this application as the reliefs sought cannot be granted by the Adjudicating Authority. The applicant does not have any speaking reliefs from this Adjudicating Authority, which are otherwise cannot be granted and rejected. The application stands dismissed.”

“5.

In facts of the present case and the stage in which the CIRP has been proceeded, we are of the view that the Appellant’s grievances can be raised by way of objection before the Adjudicating Authority and the Adjudicating Authority at the stage of approval of the plan may take consideration of the objections and pass appropriate orders in accordance with law. It is open for the Appellant to file objections before the Adjudicating Authority and also make prayers as may be advised. We are not expressing any opinion on various contentions raised in the Appeal. In view of the facts of the present case and the stage in which CIRP has been gone into, we are not inclined to interfere with the impugned order. With these observations, the Appeal is disposed of.”

I.A. (IB) No. 406/KB/2023

a. To direct compliance with Chapter II of the Insolvency and Bankruptcy Code, 2016, the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 Chapter IV, V, VI, VII, VIII, IX, Hon'ble Delhi High Court Order dated 16- 01-2016, Hon'ble NCLAT Order dated 04-06-2021 passed in Company Appeal (AT) Insolvency No.348 of 2020 and in Company Appeal (AT) Insolvency No.348 of 2020 and Order dated 31-01-2023 passed in Company Appeal (AT) Insolvency No.914 of 2022 and also under paras 72 to 74 of the Order passed by this Hon'ble Adjudicating Authority on 07-02-2020 and consequential direction for mechanism to recover the entire amount legally accruing and belonging to the Corporate Debtor misappropriated by Mr. Ramesh G Gowani, Universal Leaders, the erstwhile RP/liquidator, Mr. Shashi Agarwal and the present RP, Mr. Pankaj Tibrewal.

b. Declaration of CoC, appointment of new IRP as RP, all valuations purportedly done, any forensic audit report et al including Information Memorandum and Expression of Interest as invalid and null and void;

c. Removal of the RP, Mr. Pankaj Tibrewal for gross misconduct and gross violation of law, Order of the Hon'ble High Court Delhi dated 06-01- 2016, Hon'ble Supreme Court Order dated 01-07-2016, Order of the Hon'ble Adjudicating Authority dated 07-02-2020 more specifically paras 72 to 74, Order of the Hon'ble NCLAT dated 04-06-2021 and violation of mandate of law and also for committing contempt of court;

d. Direction to the new IRP on appointment as RP by a new and valid CoC to intervene in all proceedings before various authorities as enumerated in this IA and any other authority where the proceedings are pending relating to the CD which may affect its successful CIRP and comply under law to conclude the CIRP for successful resolution of the Corporate Debtor;

e. Direction to the erstwhile current RP, Mr. Pankaj Tibrewal and erstwhile IRP/RP/Liquidator Mr. Shashi Agarwal to refund every penny of remuneration appropriated by them and the expenses incurred by them @18% interest during the course of purported CIRP in view of declaration of CoC as illegal by the Hon'ble NCLAT and consequential direction to the members of erstwhile CoC for recovery of the same in case of failure of the current RP, Pankaj Tibrewal and erstwhile RP/ Liquidator Shashi Agarwal in refunding the entire amount immediately with proper accounting;

f. Direct the Special Court pursuant to Section 236 of the IBC to take cognizance of the offences committed under Section 409, 420, 467 of IPC, 1860 read with Section 447 of the Companies Act, 2013 read with other applicable provisions of IPC, Companies Act and IBC and proceed against the accused persons.

g. Restoration of IA No. 1171/2019 filed by the applicant in view of the final Judgment and Order of the Hon’ble NCLAT dated 04.06.2021.

h. Any other direction that may be deemed fit and proper.

I.A. (IB) No. 1173/KB/2020

a. Direction to the admit the entire legitimate claims of the Workmen;

b. Refrain from Auction of the Assets and properties of the Corporate Debtor without admitting the entire claim and determining the assets and liabilities of the Corporate Debtor correctly and filing a report thereon before the Hon'ble AA, NCLT;

c. Refrain from acting as Liquidator before Investigating into the misappropriation of fund of the Corporate Debtor by Ramesh G Gowani, Director of the M/s Kamala Mills Ltd and M/s Fasqua Investments Pvt Ltd and file the same before the Hon'ble AA, NCLT as directed to him at para 72 of the Order dated 07/02/2020;

d. Any other direction that this Bench may deem fit and proper for the proper adjudication of issue.

“(b)

The Adjudicating Authority is directed to appoint another IRP/ Resolution Professional in place of Respondent No.1- Shashi Agarwal, at the earliest, preferably within seven days (from the list, if any, maintained by the Adjudicating Authority or urgently getting names from IBBI). xxx xxx xxx

(d)

Respondent No.1- Shashi Agarwal will immediately hand over the complete charge of the Corporate Debtor to the new IRP/ Resolution Professional as the Adjudicating Authority may appoint.”

RST. A. (IB) No. 16/KB/2022

a. To cancel the assignment of Debts to Kamala Mills, Fasqua Investment and Pegasus Assets and any other entities which have been assigned the debts of the corporate debtor anytime in the past by the original creditors.

b. Restoration of previous secured creditors to be made members of the CoC as envisaged strictly in law.

c. To allow or direct the Workmen to furnish their formal resolution plan for takeover of the company.

d. Direct the RP to allow the professionals appointed by the workmen to visit the plants of both Jamshedpur and Pune and other properties to take stock of the corporate debtor, its revival constraints, valuation of assets and properties, SWOT analysis which are sine qua non for any takeover in the present situation.

e. Determination of eligibility of the RP in view of his future to commence the CIRP of the corporate debtor.

f. Any other direction may be deemed fit and proper.

“These two Appeals emanate from the Common Order dated 7th February 2020 passed by the Adjudicating Authority/National Company Law Tribunal, Kolkata Bench, Kolkata in C.A. (I.B.) No. 1748/K.B./2019 and C.A. (I.B.) 57/K.B./2020 in C.P. (I.B.) No 1684/K.B./2018, whereby the Adjudicating Authority/NCLT initiated liquidation proceedings against the Corporate Debtor 'INCAB Industries Limited', wherein the Appellant of Appeal No.348 of 2020 was employed until the date of passing the order of liquidation. Parties original status in the Company Petition represents them in these Appeals for the sake of convenience.”

“(i)

The Company Appeal (AT) (Insolvency) Nos. 348 of 2020 and 720 of 2020 are allowed with the following directions:-

(a)

The impugned order passed in C.A. (I.B.) No. 1748/K.B./2019 and C.A. (I.B.) 57/K.B./2020 in C.P. (I.B.) No 1684/K.B./2018 whereby the Adjudicating Authority directed initiation of liquidation proceedings against the Corporate Debtor-‘INCAB Industries Limited’ is quashed and set aside. Actions taken pursuant to impugned order are also quashed and set aside and shall not be binding on the corporate debtor. The Original Application under Section 9 of IBC is restored to the file of the Adjudicating Authority (National Company Law Tribunal, Kolkata Bench, Kolkata).”

“48. Consequence of non-appearance of applicant.-

(1)

Where on the date fixed for hearing of the petition or application or on any other date to which such hearing may be adjourned, the applicant does not appear when the petition or the application is called for hearing, the Tribunal may, in its discretion, either dismiss the application for default or hear and decide it on merit.

(2)

Where the petition or application has been dismissed for default and the applicant files an application within thirty days from the date of dismissal and satisfies the Tribunal that there was sufficient cause for his non-appearance when the petition or the application was called for hearing, the Tribunal shall make an order restoring the same:

Provided that where the case was disposed of on merits the decision shall not be re-opened.”

TO SUM UP: