ALLIANCE BROADBAND SERVICES PRIVATE LIMITED vs MANTHAN BROADBAND SERVICES PRIVATE LIMITED
IA No. GA/3/2022 In CS/54/2019
Facts:
1. Petitioner disbursed an amount of Rs. 6.30 crores to the respondent between April 2017 and July, 2017 as accommodation loan with an interest @ 9.75% per annum and was secured by pledge of original share certificates of 77,500 equity shares in the petitioner’s company held in the name of the respondent. The principal amount of Rs. 6.30 crores has repaid by the respondent on 31.03.2018 and subsequently again in the month of April, 2018, the respondent had availed loan of Rs. 10.20 crores with an agreement that the said loan amount shall be repaid within 3 months with an interest of 9.75 % and the pledged shares shall continue with the petitioner as security
2. Petitioner filed application for initiation of CIRP against the respondent before NCLT Kolkata Bench which was admitted on 18.08.2019. Petitioner also has filed suit against the respondent for a decree for a sum of Rs. 11,06,15,68/- and for declaration that 77,500 equity shares of and in the plaintiff company and other reliefs. Due to the moratorium imposed by the order of NCLT dt. 18.09.2019, the petitioner could not proceed for lodging of writ of summons or taking other steps in the instant suit to enforce the security interest over the pledged shares.
3. Director of respondent moved application for praying to set aside the order of NCLT and offered paying the entire claim of petitioner, however due to to the intervention of the other creditors having a cumulative claim of about 118 crore, the NCLAT has disposed of the appeal directing the IRP to constitute a COC and to consider any applications made by the promoters of the respondent under Section 12A of the Code. By an order dated 06.04.2022 NCLT ordered liquidation of the corporate debtor and petitioner filed its claim before the liquidator and asking the liquidator to release the securities in satisfaction of the claim in accordance with law as applicable to the security interest being realized, as the pledged shares and the Tajpur land cannot be part of liquidation estate of the respondent whihc liquidator denied vide email dated 06.06.2022.
4. Petitioner filed this IA for bringing the Liquidator as defendant in place of the respondent for the purpose of proceeding with the said suit as well as for service of writ of summons and vide order dated 29.07.2022 this court allowed the application.
Issue: whether the petitioner is entitled to any interim relief?
Arguments:
For petitioner:
1.Counsel for petitioner submitted that respondent liquidator refused to recognize the petitioner as secured creditor or to allow the petitioner to sell the pledged shares towards the partial satisfaction of the claim of the petitioner against the respondent. The pledged shares and Tajpur land cannot be made part of the liquidation estate of the respondent and the Liquidator has wrongfully tried to take the properties from the petitioner.
For Respondents:
1. Counsel for the respondent Liquidator submits that the communication as relied by the petitioner is made by the suspended Director and not the Liquidator and thus the said communication cannot be treated as admission on the part of the respondent and it further submitted that in terms of Clause 52 (5) of the IBC, 2016, the petitioner has to make an application to the adjudicating authority to facilitate the secured creditor to realize such security interest in accordance with law and thus the petitioner cannot claim any injunction before this Court during pendency of the Liquidation proceeding.
2. Counsel for respondent further submits that vide communication dt. 06.06.2022 had informed the petitioner the entire claim amount of Rs. 14, 47,32,521/- is pending adjudication before the NCLT and the Liquidator is not in a position to verify the security interest claimed by the petitioner and accordingly the Liquidator has not permitted the petitioner to realize any security interest in the assets of Corporate Debtor as per IB Code, 2016
Decision: Petitioner is not entitled to any relief.
Rationale:
1.Court noted that petitioner has filed the suit prior to the appointment of Liquidator but after the appointment of Liquidator, the petitioner has field his claim of Rs. 14,47,32,521/- against the respondent before the Liquidator in the form prescribed under the I&B Code, 2016.
2.There is no separate provision in the Companies Act exclusively dealing with the jurisdiction and powers of NCLT. In Sub-Sections (4) and (5) of Section 60 of the IBC, 2016 give an indication respectively about the powers and jurisdiction of the NCLT. Sub Section 4 of Section 60 of IBC, 2016 states that the NCLT will have the powers of DRT as contemplated under part III of the Code for the purpose of sub Section (2). Sub Section (2) deals with situation where the Insolvency Resolution or Liquidation of Bankruptcy of the corporate guarantor or personal guarantor of a Corporate Debtor is already pending before the NCLT.
3.This is to ensure that the CRIP of the Corporate Debtor and the Insolvency Resolution of the individual guarantors of the very same Corporate Debtor do not proceed on different tracks, before different forum, leading to conflict of interest, situations or decisions. Petitioner is apprehending that the Liquidator will take the control and possession of the shares of the respondent which is in possession 14 of the petitioner and accordingly has filed the instant application but as per the provisions of 60 (5) of IBC, 2016, the petitioner can approach the NCLT instead of filing the instant application before this Court.
4. The matter in issue in the suit can be more appropriately and effectively decided and adjudicated by the NCLT. In the present case, Section 430 of the Companies Act, 2013 itself provides an additional bar by stating that no injunction shall be granted by any civil court in respect of any action taken or to be taken in pursuance of any power conferred on the NCLT by the Companies Act, 2013.
Order:
