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Judgment
ORDER
Rajasekhar V.K., Member (Judicial)
This is a Miscellaneous Application filed under section 19 (2) read with section 34 (3) of the Insolvency and Bankruptcy Code, 2016 (‘the Code’) by Suman Kumar Agarwal, Liquidator of Kolkata Conductor & Cable Private Limited (‘Applicant’) against Kolkata Conductor & Cable Private Limited (‘Corporate Debtor’ or ‘Respondent No. 1’), Manoj Kumar Singh, Director of Kolkata Conductor & Cable Private Limited (‘Respondent No. 2’), Pankaj Kumar Singh, Director of Kolkata Conductor & Cable Private Limited (‘Respondent No. 3’), Registrar of Companies, West Bengal, Ministry of Corporate Affairs (‘Respondent No. 4’)and Assistant General manager, the Oriental Bank of Commerce (‘Respondent No. 5’), inter alia, seeking the following reliefs:-
a. A direction to conduct a forensic & legal audit by a professionally qualified expert and appointment of the same;
b. A direction on the Respondent No.1 & Respondent No.2 to cooperate with the Applicant and to hand over him all the books of accounts, documents, legal papers concerning the past and present affairs of the Corporate Debtor.
c. The Officer in charge of Pragati Maidan Police Station and Liluah Police Station and District Magistrate of South 24 Parganas and Howrah District be directed to ensure unhindered and unobstructed access of all the properties of the Corporate Debtor by the Applicant.
d. A direction on Respondent No.5 to verify its whole process of Appraisal, Sanction, Documentation, Disbursement and monitoring of the Credit Facilities granted to the Corporate Debtor; also to fund the whole cost of forensic and legal audit.
e. A direction on the Respondent No.4 to take off its records in the MGT 14 filed on 26 April, 2019 and Form INC 22 filed on 15 May, 2019 by Ms. Deepika Srivastav, PCS because the same was filed illegally and in an improper manner.
f. A direction on the Respondent No.4 to treat the Extra-Ordinary General Meeting of the shareholders held on 15 April, 2019 and all resolution passed therein as a null.
The Ld. Counsel appearing on behalf of the Applicant submits as follows:
This Adjudicating Authority vide its order dated 12 March, 2019 had appointed the Applicant as the Liquidator. Pursuant to his appointment, the Applicant made a public announcement in terms of Section 33(1)(b)(ii) of the Code, inter alia, inviting claims from the stakeholders. Intimations were also sent to Insolvency and bankruptcy Board of India and the Corporate Debtor at its registered office.
Thereafter, the Applicant visited the registered office of the Corporate Debtor, where he was denied to enter into the premises. The Applicant then pasted a notice on the door of the registered office of the Corporate Debtor. On receiving no response from Directors, the liquidator again sent an intimation letter to all the Directors on 30 April, 2019. The letter sent to Respondent No.2 was delivered but the letter sent to Respondent No.3 was returned as undelivered.
Pursuant to the publication in the newspaper, the Applicant received only one claim from the Oriental Bank of Commerce for a sum of Rs.24,57,73,317.32 (Rupees twenty-four crore fifty-seven lakh seventy-three thousand three hundred seventeen and paise thirty-two only. The Applicant scrutinised and verified the claim based on the documents submitted by Oriental Bank of Commerce (‘Bank’). However, detailed clarification could not be obtained due to non-receipt of necessary records maintained by the Corporate Debtor
The Applicant on getting information from the Bank about the plant of the Corporate Debtor at Pagladanga Road including land, plant and machineries, which were mortgaged to the Bank. On visiting the Plant, the Applicant was shocked to find that there was nothing in the plant except some steel scrap, there was no Plant and Machineries either. The Applicant further fount that apart from a security guard there was no other employee and the plant building was kept in a dilapidated condition.
Thereafter, to know further the Applicant on 26 June, 2019 called for stakeholders meeting. Upon further interaction with the Bank, the Applicant noticed that the bank had failed to do a proper appraisal, sanction, documentation, disbursement and monitoring of the Credit Limit provided to the Corporate Debtor. The Bank also failed to provide any details of the Fixed Assets like serial nos. or identification nos. Because of gross failure and non-cooperation from the Respondents, the Applicant is not in a position to discharge his duties, responsibilities, and obligations in terms of the provisions under the Code. The Applicant is also unable to form the Liquidation Estate of the Corporate Debtor for the benefit of the stakeholders.
The Applicant is in absolute dark with respect to the grounds of breach by the Corporate Debtor of the terms and conditions of the loan sanctioned by the Bank because the Bank has failed to bring on record any documents
Analysis & Findings
Since there has been no co-operation from the directors in spite of various orders dated 04 March, 2020, 18 November, 2021, 17 December, 2021 and 09 February, 2022 and bailable warrant dated 11 March, 2022 and 28 March, 2022 passed by this Adjudicating Authority, which were to be recalled by executing a personal bond of Rs.1,00,000/- each upon production.
This Adjudicating Authority had time and again directed the police authorities to cause production of two directors Mr. Pankaj Kumar Singh and Mr. Manoj Kumar Singh in the court but the same was not fruitful, in so far Mr. Manoj Kumar Singh is concerned.
It is noticed from the report of the police authorities that Mr. Manoj Kumar Singh’s whereabouts are not traceable. This is not acceptable to the Court, considering the vast resources available to the police. In today’s day and age, we find it highly improbably that a person can just disappear off the face of the earth.
Orders
In these circumstances, we hereby direct Mr Sudeep Sarkar, IPS, Deputy Commissioner of Police, South East Division to be present before this Court on the next date of hearing in case Mr Manoj Kumar Singh is not traced and brought to court. Time is of the essence since the entire liquidation process, which is to be completed within a defined time-frame under the Insolvency & Bankruptcy Code, 2016, is required to be completed.
A copy of this order be communicated by the Registry to the Learned Advocate General for the State of West Bengal and to the Learned Public Prosecutor of the Hon’ble High Court at Calcutta.
List this matter for further consideration on 13 July, 2022. The main CP shall also be posted on the same day.