Sushil Kumar Ganeriwala & Anr. vs Indian Bank & Ors.

Instant appeal has arisen against a judgment and order dated 08.11.2024 passed by Learned DRT 1 Kolkata in O.A. No. 582 of 2022 (Indian Bank versus Ms. Bengal Brahmaputra Realty Ltd. and Ors) whereby Learned DRT dismissed the I.A. 1808 of 2024 filed by the Appellant herein who was defendant No. 4 before the Learned DRT.

O.A. No. 582 of 2022 was filed by the Indian Bank against four defendants under Section 19 of the Recovery of Debts and Bankruptcy Act, 1993 for issuance of a certificate for an amount of Rs.3,53,77,698.52p. Appellant herein Sushil Kumar Ganeriwala was defendant No. 4. It appears that the written statement was not filed by the Appellant herein and Application being I.A. No. 1808 of 2024 was filed for appointment of Receiver for making an inventory of the hypothecated assets with consequential reliefs.

Application was moved on different grounds for appointment of Receiver. Learned DRT recorded a finding that the order dated 24.03.2023 is not complied by the Appellant. Accordingly, dismissed the Application being I.A. No. 1808 of 2024 and further held that since the moratorium is in force, no hearing can be made.

Learned Counsel for the Appellant would submit that admittedly Section 95 of the Insolvency & Bankruptcy Code, 2016 proceedings are pending before the National Company Law Tribunal, Kolkata Bench but the same does not take away the rights of the Appellant to seek for interim protection in the form of appointment of Receiver for preparation of inventory of the hypothecated goods. Learned Counsel for the Appellant would further submit that since the moratorium was in force, there was no question of filing of written statement in the O.A. proceedings as the Application under Section 95 of the Insolvency & Bankruptcy Code, 2016 proceedings was there prior to the order dated 24.03.2023. It is further submitted that even Bank itself in the O.A. proceedings have prayed for appointment of Receiver. Hence, the appointment of Receiver is a necessity for preparation of the inventory.

Per contra, Learned Counsel for the Respondent Bank would submit that the proceedings under Section 95 of the Insolvency & Bankruptcy Code, 2016 are pending before the National Company Law Tribunal. Learned DRT rightly held that since moratorium is in force, no further proceedings can be undertaken.

It is admitted position between the parties that a petition under Section 95 of the Insolvency & Bankruptcy Code, 2016 was filed before the National Company Law Tribunal, Kolkata and moratorium was in force. Section 96 (1) of Insolvency & Bankruptcy Code, 2016 reads as under:

A bare perusal of the provision would show that when the moratorium was in force, any legal action or proceeding pending in respect of any debt shall be deemed to have been stayed. Meaning thereby that when the moratorium was in force, proceedings before the Learned DRT could not proceed. Furthermore, it is not in dispute rather admitted by the Appellants that they did not file the written statement before the Learned DRT as moratorium was in force. Impliedly they are also admitting the legal proposition of law.

In such circumstances, when the Learned DRT has stayed the proceedings on the ground of pendency of moratorium, there was no question of appointment of Receiver as prayed for by the Appellant. Learned DRT dismissed the I.A. on the ground of non-compliance of the order dated 24.03.2023. Instead of dismissing the I.A. No. 1808 of 2024 Learned DRT could have kept the same pending during moratorium period. With these observations, Appeal is liable to be disposed of.

Appeal being Misc. Appeal No. 50 of 2025 arising out of O.A. No. 582 of 2022 passed by Learned DRT-1 Kolkata (Indian Bank versus Ms. Bengal Brahmaputra Realty Ltd. and Ors) is disposed of.

Copy of the Judgment/ Final Order be uploaded in the Tribunal's Website.