Nagreeka Exports Ltd. vs Sanjit Kumar Nayak & Anr.

Per : Justice Rakesh Kumar Jain: (Oral)

27.02.2023: This appeal is directed against the order dated 14.12.2021, passed by the ‘Adjudicating Authority’ (National Company Law Tribunal, Kolkata Bench, Kolkata), by which application bearing No. IA No.781/KB/2020 in CP(IB) No. 1512/KB/2018 filed by Liquidator (Respondent herein) against Nagreeka Exports Limited (Appellant herein) under Section 35(1)(b) & 60(5) of Insolvency and Bankruptcy Code, 2016’ (in short ‘Code’), was allowed.

Brief facts of the case are that the State Bank of India (SBI) filed an application under Section 7 of the Code for resolution of a debt against Skyrise Overseas Pvt. Ltd (Corporate Debtor). The said application was admitted on 09^th August, 2019. Since there was no resolution about the debt, therefore, the Adjudicating Authority passed an order for liquidation on 11^th February, 2020. During the pendency of the liquidation proceedings, an application bearing IA No. IA No.781/KB/2020 in CP(IB) No. 1512/KB/2018 was filed by the Respondent (Liquidator) against the present Appellant and one of its Director, praying therein that the Appellant may be asked to vacate the Commercial Office Space having 1489 Sq. Ft. along with 1 care parking space at 1^st Floor of Diamond Prestige at 41A, A.J.C Bose Road, PS-Park Street, Kolkata-17 registered vide Deed No. 1339 of 2012 in the name of Saraf Impex Pvt. Ltd., which was changed to M/s. Skyrise Overseas Pvt. Ltd. The said application has been allowed by the impugned order dated 14.12.2021. The Appellant contested the application, inter alia, on the ground that it is a ‘Secured Creditor’ by virtue of an ‘Arbitration Award’ dated 12^th August, 2014.

The Adjudicating Authority, in the concluding part of the impugned order

The Appellant has preferred this Appeal with a grievance that the Adjudicating Authority has committed a patent error in treating the Appellant as an ‘Operational Creditor’ instead of a ‘Secured Creditor’. In this regard, counsel for the Appellant has relied upon a decision of this ‘Appellate Tribunal’ rendered in the case of ‘Sicom Limited, Solitaire Corporate Park Vs. Sundaresh Bhat, Liquidator of ABG Shipyard Limited, BDO Restructuring Advisory LLP^{11.2022 SCC Online NCLAT 5}’ to contend that the Arbitration Award in favour of the Appellant falls within the definition of security interest.

Counsel for Respondent has submitted that the present appeal is premature because the Appellant has not approached the ‘Liquidator’ with the claim that dehors the fact that he has been held to be an ‘Operational Creditor’, he is also a ‘Secured Creditor in view of the Arbitration Award. He has argued that the Appellant should have first exhausted his remedy of filing the claim with the Liquidator on the basis of the evidence whatSOever in his possession, to prove that he is also a ‘Secured Creditor’. The Liquidator would have taken a decision in one way or the other on the basis of evidence before him and in accordance with law.

Face with these arguments, Counsel for the Appellant has submitted that he may be allowed to withdraw the present appeal at this stage and may be relegating to his remedy of filing a claim before the Liquidator and the Liquidator may be simultaneously directed to take a decision on his claim as to whether he would be falling within the definition of ‘Secured Creditor’ on the basis of the Arbitration Award.

Counsel for the Liquidator has not raised any objection in this regard and rather supported the case of the Appellant that the right course in this case would have been to file a claim before the Liquidator.

Keeping in view of the aforesaid facts and circumstances of the case, the present appeal is hereby disposed of as withdrawn, with liberty to the Appellant to file an appropriate application (claim) in accordance with law, as a ‘Secured Creditor’ on the basis of the Arbitration Award, within a period of 15 days from today. In case, any such application is filed to the Liquidator (Respondent), he would decide the same in accordance with law after taking into consideration all the relevant facts and circumstances as well as the relevant law within 15 days thereafter. It is needless to mention that Respondent shall decide the application (claim) by passing a reasoned order in accordance with law. It is made clear that we have not expressed any opinion on the merit of the case.