Kavita Jagatramka vs Mr. Sumit Binani

Per: Barun Mitra, Member (Technical)

The present appeal filed under Section 61 of Insolvency and Bankruptcy Code 2016 (‘IBC’ in short) by the Appellant arises out of the Order dated 27.08.2024 (hereinafter referred to as ‘Impugned Order’) passed by the Adjudicating Authority (National Company Law Tribunal, Jaipur Bench) in I.A. (IB) No. 1175/KB/2020 in CP (IB) No. 182/KB/2017. By the impugned order, the Adjudicating Authority has dismissed I.A. No. 1175 of 2020 filed by the Appellant and turned down the prayer of the Appellant for initiating perjury proceedings against the liquidator-Respondent for having affirmed a false affidavit in the contempt petition filed vide IA No. 694 of 2020. Aggrieved by the impugned order, the present appeal has been preferred by the Appellant.

Outlining in brief the factual background of the matter, Shri Debal Banerjee, Ld. Senior Counsel for the Appellant submitted that the Corporate Debtor-Gujarat NRE Coke Ltd. had been admitted into liquidation on 11.01.2018 and the present Respondent-Mr. Sumit Binani was appointed as the liquidator. The liquidator sought to have access to the office premises of the Corporate Debtor and for this purpose had sent a communication on 08.06.2020 to the father of the Appellant-Ms. Kavita Jagatramka seeking access to the office of the Corporate Debtor under liquidation following which request, the office premises was opened by the Appellant on 10.06.2020. However, on 01.07.2020, the liquidator filed Section 19(2) application under IBC seeking directions of the Adjudicating Authority for the impleaded parties to extend co-operation in allowing access to the liquidator to the office premises of the Corporate Debtor. The Adjudicating Authority, on 17.07.2020, after considering the Section 19 application filed by the liquidator directed the impleaded parties and/or the owner of the premises, whosoever was in the possession of the keys of the office premises to handover the keys to the Liquidator. Since the order of the Adjudicating Authority on the Section 19 application dated 17.07.2020 was without the knowledge of the Appellant as she was not arrayed as a party, the Appellant filed an IA seeking clarification/modification of the said order since it was not clear as to whether the Adjudicating Authority had directed the handing over exclusive possession of the entire office premises to the liquidator or only that portion of the office premises from where the registered office of the Corporate Debtor was running. Obtaining this clarification was essential because this office premises was shared by other companies whose valuable records were also lying in the same premises and the Corporate Debtor was in occupation of only a small portion of the office premises. Before the application for clarification/modification could be heard, the Respondent- Liquidator on 31.07.2020 proceeded to file a contempt petition vide IA No. 694 of 2020 against the Appellant for violating the order dated 17.07.2020. The Adjudicating Authority on 14.08.2020 had directed the Appellant to show cause as to why Rule should not be issued against the Appellant. Elucidating further, it was submitted that the Appellant thereafter filed Company Appeal No. 724-725 of 2020 before this Tribunal on 16.08.2020 against the orders of the Adjudicating Authority dated 17.07.2020 and 14.08.2020. This Tribunal after hearing the matter had set aside the impugned orders of 17.07.2020 and 14.08.2020 as erroneous and unsustainable on 02.02.2021. Yet, the Liquidator-Respondent continued to press for hearing of the contempt petition. In the contempt petition, the Appellant filed their reply-affidavit on 08.09.2020 to which the Respondent filed their rejoinder.

It was vehemently contended by the Ld. Senior Counsel for the Appellant that the liquidator in their rejoinder to the reply-affidavit filed by the Appellant has affirmed a false affidavit. The Respondent by giving false evidence in judicial proceedings had committed an offence of perjury which fell within the purview of Section 193 of the IPC and therefore liable to be punished as it attracted provisions of Section 340 of the Code of Criminal Procedure (CrPC), 1973. Hence, the Appellant filed IA No. 1175 of 2020 before the Adjudicating Authority claiming the following reliefs as reproduced below:-

Submission was pressed by the Ld. Sr. Counsel for the Appellant that the liquidator being an officer appointed by the Adjudicating Authority was bound to state the truth. However, by making false statements in their reply affidavit, the liquidator had committed an offence punishable under the IPC. It was stoutly asserted that the Respondent had made these false statements in a blatant manner with the dishonest intention to injure the interests of the Appellant. Coming to the deliberate false statements made by the liquidator, it was pointed out that despite being fully aware that the ownership of the registered office premises of the Corporate Debtor vested on the Appellant-Kavita Jagatramka, the liquidator in the rejoinder affidavit made a false statement of being unaware of the purported involvement or interest that the Appellant had in the office premises. The liquidator had also played down the fact that he had written to the father of the Appellant on 08.06.2020 for seeking access to the registered office premises of the Corporate Debtor and that temporary access had been allowed on 11.06.2020. It was also added that the liquidator had not only made false statements in their rejoinder to the reply affidavit in the contempt petition but had continued in the same vein in their reply-affidavit to IA No. 1175 of 2020. The liquidator has continued to make false and misleading statements to justify the earlier false statements. It was submitted that inspite of such glaring acts of perjury, the Adjudicating Authority in the impugned order abstained from returning its findings on the fact as to whether the liquidator had pressed false and misleading statements before it. Further, assailing the impugned order, it was pointed out that the Adjudicating Authority had taken a misplaced view that it was “not tempted” to have the matter referred for initiating proceedings for perjury under Rule 11 of the NCLT Rules, 2016 read with Sections 340, 195(1)(b) of the CrPC read with Sections 191, 193, 199, 209 and 211 of IPC.

Making rival submission, Shri Arjun Asthana, Ld. Counsel for the Respondent submitted that the Adjudicating Authority did not have jurisdiction to adjudicate on the allegation of perjury and had therefore taken the correct decision of not entertaining the prayer of the Appellant to entertain the changes of perjury against the liquidator. The Ld. Counsel for the Respondent stated that the application under Section 19 was instituted as the liquidator was not allowed free access to the office space of the Corporate Debtor on one pretext or the other. It was only upon ease of restrictions after the first wave of Covid pandemic, that the liquidator had sent a mail on 18.05.2020 to the CFO of the Appellant enquiring as to who was in possession of the keys of the office of the Corporate Debtor. The CFO had categorically informed on 19.05.2020 that the keys of the office were in the custody of two office boys. In subsequent emails, it was further clarified by the employees of the Appellant that the boys in whose custody the keys were lying were not able to come to the office because of prevailing COVID pandemic and consequential closure of train services. The liquidator therefore tried to reach out to the two office-boys who were in possession of the keys according to the information shared by the Key Managerial Personnel (“KMP” in short) of the Appellant. In support of their contention, attention was adverted to a series of emails dated 18.05.2020 to 03.06.2020 that were exchanged between the Liquidator and the KMP employees as placed on record at pages 9-22 of the reply-affidavit filed on behalf of the Respondent in the present appeal. The Ld. Counsel of the Respondent contended that collective reading of these emails will show that the Liquidator was all along making genuine endeavours to gain access to the premises of the Corporate Debtor. At no stage did the office-boys or the KMP of the Appellant indicate or suggest that the office premises was owned by the Appellant. Hence, it is misconceived on the part of the Appellant to contend that the liquidator was aware about the ownership status of office premises of the Corporate Debtor. Later, the KMPs changed their stance on 03.06.2020 and mentioned that the keys are with the owners, without disclosing the identity of the said owners. It was only on 23.07.2020, that Mr. Arun Kumar Jagatramka, without disclosing the details of the owner of the office premises of the Corporate Debtor communicated that one Surajbari Traders Private Limited has exclusive tenancy rights over the office premises. Thus, it was the Appellant along with the KMPs, officials, employees and suspended board of management who acted in a manner preventing the Liquidator from accessing the office space of the Corporate Debtor.

We have duly considered the arguments advanced by the Ld. Counsel for both the parties and perused the records carefully.

It is the contention of the Appellant that at the time of filing of Section 19 application, the liquidator was fully alive and conscious of the fact that the Appellant was in possession of the keys of the office premises and yet chose not to make the Appellant a party in the Section 19 application. The liquidator thus unfairly obtained orders behind the back of the Appellant. It was also contended that while the Appellant was not made a party to the Section 19 application, the converse happened when the contempt application was filed by the Respondent-liquidator. In the contempt application, the employees of the Appellant were excluded though they were impleaded as the main parties to the Section 19 application. On the other hand, in the contempt application only the Appellant was made a party. Viewed from the angle of fairness and transparency, it was argued that this duality in impleadment of parties by the Liquidator in the Section 19 application and contempt petition puts a serious question mark on the conduct of the liquidator. Moreover, it is the case of the Appellant that in the contempt petition, certain false statements have been deliberately made by the liquidator to justify their wrongful conduct.

When we see the material on record, as brought to our notice by the Appellant, we find that the Respondent-liquidator in their Section 19 application dated 01.07.2020 in the main body of the said application and synopsis thereto admitted that the keys of the office premises were lying with the Appellant. For reasons of clarity, we would like to reproduce the relevant excerpts from the synopsis (dates and events) as well as the main application which clearly indicate that the liquidator had admitted of being aware of the fact that Kavita Jagatramka-Appellant was having the keys of the office premises being the owner of the office premises of the Corporate Debtor as below:

It was also pointed out by the Appellant that the liquidator took a contra position in their rejoinder in the contempt petition. The liquidator has made a statement denying his being aware of the interests of the present Appellant in the office space of the Corporate Debtor which has been contended by the Appellant to be a case of deliberate misrepresentation of facts and records. In support of their contention, attention was adverted by the Appellant to the averments made by the liquidator in their rejoinder to the contempt petition as placed at page 235-237 of Appeal Paper Book (“APB” in short) wherein knowledge of the interest of the Appellant in the office premises of the Corporate Debtor has purportedly been falsely denied by the liquidator relevant excerpts of which are as reproduced below:

The short question for our consideration is whether in the attendant facts and circumstances, there is sufficient credibility in the allegation of the Appellant that the liquidator was brazen about manipulating and misrepresenting facts and records before the Adjudicating Authority in the contempt petition which tantamount to committing of perjury.

At this juncture, it would be useful to look at the impugned order to find out how the Adjudicating Authority has viewed the allegations cast by the Appellant on the conduct of the liquidator. We find that the Adjudicating Authority has acknowledged that an “error” was committed by the liquidator in “securing an order under Section 19(2) of the IBC” for not impleading the Appellant but held that it is not tempted to initiate perjury against the liquidator for the contents sworn on affidavit by the liquidator in their reply rejoinder to the contempt petition. The relevant excerpts from the impugned order are as reproduced below:

The main contention raised by the Appellant is that the liquidator made false and misleading statements in the rejoinder reply to the contempt petition that they were not aware of the interest of the Appellant in the office premises of the Corporate Debtor. When we look at the sequence of events, we notice that the liquidator got access to the office premises of the Corporate Debtor on 11.06.2020 for an extremely brief period. However, thereafter when the liquidator again wanted continued access to the said premises, he was not able to secure the same. The requirement to have continued and prolonged access to the said office premises is justifiable as it was a necessary prerequisite to progress the liquidation process of the Corporate Debtor which was already initiated. As it was incumbent upon the liquidator to pursue the timely conclusion of the liquidation process, we cannot question the motive and intent of the liquidator to make the efforts he undertook in securing the keys of the office premises of the Corporate Debtor. It is also an indisputable fact that the liquidation process was underway while covid pandemic was raging which could have come in the way of the efforts undertaken by the liquidator to identify the holder of the keys and secure the keys to the office premises of the Corporate Debtor. We also cannot overlook the fact that the liquidator made a lot of effort by sending correspondences to the KMPs of the Corporate Debtor to identify the custodians of the keys and the whereabouts of the owner of the office premises of the Corporate Debtor. Inspite of these endeavours, the liquidator did not succeed in laying his hands on the keys or in getting correct information about the owner of the office premises of the Corporate Debtor. This stalemate compelled the liquidator to file a Section 19 application before the Adjudicating Authority. Since the liquidator only had knowledge about the KMPs of the Corporate Debtor but did not have credible and authentic information about the actual owner, it was logical on their part not to have arrayed the Appellant as a party in the Section 19 application. In the given circumstances, to read or impute motives behind the reason for omission in including the Appellant as a party in the Section 19 application may not be fair. In our considered opinion, therefore, the Adjudicating Authority did not err in giving the benefit of doubt to the liquidator in having made the aforesaid omission. We are also persuaded to believe that no cogent grounds have been brought out which give foundation to the exclusion of the Appellant from the Section 19 application by the liquidator as having been triggered by dubious, suspect or malafide motives. It would also not be correct to hold that the liquidator had fool-proof information about the interest of the Appellant with regard to ownership of the office premises of the Corporate Debtor at the time of filing the contempt application. Moreover, the inclusion of the Appellant in the contempt application done by the liquidator was because the Adjudicating Authority had passed orders in the Section 19 application directing that the owner of the premises or whosoever is in possession of the keys of the office premises shall handover the keys to the liquidator immediately. In the given facts and circumstances, we find that the manner in which the liquidator had placed facts before the Adjudicating Authority in the Section 19 application and the statements made while pursuing the contempt petition are not such that he wilfully and deliberately acted with any malfide intent to cause prejudice to the interests of the Appellant. We therefore do not find any error having been committed by the Adjudicating Authority in not initiating proceedings for perjury.

In the given backdrop, we are of the considered view that the impugned order does not warrant any interference by this Tribunal in the exercise of its appellate jurisdiction. The Appeal lacks merit and is dismissed. No order as to costs.