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Judgment
O R D E R
02.09.2022: Heard Mr. Mayank Mikhail Mukherjee, Ld counsel for the Applicant as well as Mr. Saurabh Jain, Ld counsel for the Respondent.
The present ‘contempt application’ was filed with a prayer to initiate contempt proceedings against the Respondent on the plea of disobedience of an order dated 05.02.2020 in the matter titled "Rajesh Goyal v Babita Gupta'', bearing CA (AT) (Insolvency) No. 1056 of 2019 and I.A. Nos. 4033 & 4303 of 2019 passed by this Tribunal, with further allegation that the Respondent has also disobeyed subsequent order passed by this Tribunal dated 03.08.2022.
Ld counsel for the Applicant by way of referring paragraphs – 15, 16 & 20(4) of the aforesaid order passed by this Tribunal dated 05.02.2020 submits that the Respondent has not complied with directions. Before proceeding, it would be appropriate to reproduce the said paragraphs:
“Para 15 - Mr. Rajesh Goyal, who is present in the Court, undertakes that he will immediately infuse a sum of Rs. 5.38 Cr. plus 0.50 Cr. i.e. Rs. 5.88 Cr. within a week.
16.Mr. Rajesh Goyal (Promoter) also agrees to pay to all the ‘Financial Institutions’ such as ‘Allahabad Bank’, ‘Punjab National Bank’ and ‘Indiabulls’ etc. The dues of all the ‘Financial Institutions’ and time of payment has been shown as under:
“The dues of financial institutions (Principal only), as existing on the day of declaration of the account as NPA or 19th September, 2019 the date on which the insolvency petition against the corporate debtor was admitted as the case may be, shall be paid in the following time frame:
Sl. No. Sl. No. Name of the Financial Institutions Sl. No. Name of the Financial Institutions Amount (Rs.) due as on date Time period for payment 1. Allahabad Bank 17.35 Crores (as on 01/04/2019 Within 180 days of the start of the work, subject to any unforeseen circumstances 2. Punjab National Bank 1.33 Crores (as on 19/09/2019 Within 180 days of the start of the work, subject to any unforeseen circumstances` 3. Indiabulls Commercial Credit Ltd. 35.80 Crores (the balance as on 01/07/2019 after payment of Rs. 3.70 Crores on 29.06.2019 for regularizing the account) Within 180 days of the start of the work, subject to any unforeseen circumstances 4. India Infoline Housing Finance Limited 27.00 crores (as on 19/09/2019) Within 180 days of the start of the work, subject to any unforeseen circumstances Total 81.48 Crores 20(iv)- ‘Rajesh Goyal’ will return the amount to the allottees, who already sought for, within the time frame i.e. 30% of the principal amount within 90 days and rest 70% of the principal amount within 180 days. The interest be paid to them in the manner as detailed above by 30th August, 2020. The ‘Financial Institutions/’Banks’ and ‘Operational Creditors’, if any should be paid simultaneously within the period of 180 days.”
Ld counsel for the Applicant further submits that since order was not complied with within the time fixed, the Respondent earlier had moved this Tribunal with a prayer for extension of time. Despite the fact that extension of time was granted even during extended period the aforesaid direction has not been complied with. Accordingly, he submits that it is glaring example of willful disobedience to the order of this Tribunal.
Ld counsel for the Respondent submits that even before expiry of earlier extended time, the Respondent has subsequently filed an application vide IA No. 2865 of 2021 for granting further extension for implementation of the order. He further submits that extension was sought for due to the reason that even first order was passed during Covid-19 period of 2020 and there were also second & third wave of Covid-19 and as such, the Respondent by filing second application, has requested for granting further time. Besides making submission on the point of extension of time, he further submits that this dispute is sub judice before the Hon’ble Supreme Court in Civil Appeal No. 6923 of 2021, which was filed by ‘Home Buyers’ in the present case. He further submits that in appeal before the Hon’ble Supreme Court, the present applicant had filed ‘intervention application’ for allowing him to be intervener. However, the said application has been rejected by the Hon’ble Supreme Court on 31.08.2022. This fact was not disputed by Ld counsel for the Appellant.
Primary, in view of the fact that Hon’ble Supreme Court is ceased with the matter, in any event, it would not be appropriate for this Tribunal to examine the present issue. Besides pendency of the appeal before Hon’ble Supreme Court, on perusal of order dated 05.02.2020, it is evident that everything was to be looked into by the Adjudicating Authority in term of order dated 05.02.2020 passed by this Tribunal regarding non-compliance has been alleged in the present application.
It is apt to reproduce the concluded relevant portion of the order dated 05.02.2020. Accordingly, para 20(v), (vi) & (vii) are reproduced herein below:
“20(v). All these processes should be completed by 30th August, 2020. If it completed, the Corporate Insolvency Resolution Process be closed after intimating it to the Adjudicating Authority (National Company Law Tribunal). The resolution cost including fee of the Interim Resolution Professional will be borne by the Promoter. Only after getting the certificate of completion from the Interim Resolution Professional/ Resolution Professional and approval of the Adjudicating Authority (National Company Law Tribunal) unsold flats/ apartments etc. be handed over to the Promoter.
vi.It is made clear that even during the Corporate Insolvency Resolution Process, the Interim Resolution Professional can also sell the unsold flats/apartments, by way of a Tripartite Agreement between the Purchaser, Interim Resolution Professional/Resolution Professional and Promoter (Rajesh Goyal). The proceeds as may be generated from such sale should be utilized for completion of the project, payment to Financial Institutions/Banks, Operational Creditors and interest as is payable to the allottees whose principal amount is to be refunded. Once the project is completed, the ‘Interim Resolution Professional’ will move application before the Adjudicating Authority (National Company Law Tribunal) with the report of completion and ask for disposal of application under Section 7 of the ‘I&B Code’ filed by Ms. Babita Gupta, Mr. Manoj Kumar Gupta and Ms. Sweta Gupta (Allottees – Financial Creditors).
vii.However, if the ‘Promoter’ fails to comply with the undertaking and fails to invest as financial creditor or do not cooperate with the Interim Resolution Professional/Resolution Professional, the Adjudicating Authority (National Company Law Tribunal) will complete the Insolvency Resolution Process.”
In such situation, it is evident from the afore quoted order, if the Applicant is having any grievance, it would be better for him to approach the Adjudicating Authority first. However, during pendency of appeal in Hon’ble Supreme Court i.e. Civil Appeal No. 6923 of 2021, in any event, it would not be appropriate for us to issue any further direction in the matter.
Accordingly, the Contempt Application stands disposed of.
No order as to costs.