Vivek Agrawal vs Kanak Resources Management Ltd.

B.S.V. Prakash Kumar, J

It is an unnumbered application filed by the Operational Creditor who filed CP (IB) 89/2017 against M/s. Kanak Resources Management Limited which was admitted by NCLT in the year 2017, the reliefs sought in this application are as follows:

a. appoint an Officer-in-Charge/Administrator of Corporate Debtor i.e. Kanak Resources Management Limited,

b. expeditiously consider CA No. 2872/2019 and CA No. 1330 (PB)/2020 in Company Petition No. (IB) 89 of 2017 inter alia to appoint suitable resolution professional.

On admission of this Company Petition/CIRP was commenced against this Corporate Debtor on 25.09.2017 wherein one Mr. Sanjeev Ahuja was appointed as Resolution Professional vide Order dated 03.11.2017, subsequent thereto, for this Company being one of the group companies of IL & FS, the Hon'ble Appellate Tribunal on 15.10.2018 stayed proceedings against the subsidiaries of IL & FS group. For this Company, against which CIRP was already initiated, happens to be one of the subsidiaries of IL & FS group, the Resolution Professional approached the Hon'ble NCLAT seeking clarification with regard to CIRP proceedings pending against the Corporate Debtor before NCLT, upon which, the Hon'ble NCLAT held that this issue be decided by the NCLT. When the Resolution Professional in turn filed another application before NCLT to get a clarification as to how he had to go about CIRP pending against the Corporate Debtor, this Bench, on 21.10.2019, dismissed main Company Petition filed against the Corporate Debtor by holding as follows:

"3. An application emerging from these proceedings nuts filed before the Hon'ble Appellate Tribunal with a prayer for clarifying the issue as to whether the moratorium would impact the proceedings before us. Hon'ble Appellate Tribunal in its order dated 02.092019 has refused to entertain the issue in the aforesaid application being I.A. No. 2566 of 2019 and left the matter to be decided by the Adjudicating Authority-NCLT. Liberty has been given to file any application before us. In the order dated 25.10.2018 it was admitted that the corporate debtor namely Kanak Resources Management Ltd, is a group company IL & FS. We do not need wish to go any further except reading para-i of the Hon'ble Appellate Tribunal order dated 15.10.2018 which shows that institution or continuation of suits or any other proceedings by any party or person or Bank or Company in respect of group companies in any Court of Law/Tribunal would remain stayed. Accordingly, the petition is dismissed at this stage with liberty to the parties to file an appropriate application if any other development warranting intervention of NCLT-Adjudicating Authority arises".

Now the grievance of the Applicant is, since this Company is engaged in providing essential services during the present pandemic Covid-19, some officer shall be appointed as Officer-in-charge because this Applicant has already moved two applications seeking clarification that the Resolution proceedings in re Corporate Debtor are still pending and for appointment of suitable Resolution Professional, wherein the Resolution Professional did not appear for the hearing dated 03.01.2020 despite notice was served upon him in those applications.

And another grievance of this Applicant is, he has come across an advertisement in the newspaper dated 14.01.2020 inviting Expression of Interest from prospective buyers for acquisition of IEISL (IL & FS group entity holding 94% share capital of the Corporate Debtor) which holds 94.71% shareholding in this Corporate Debtor. In the backdrop of these facts, for this applicant is not clear as to whether the proceedings against the Corporate Debtor are pending before this Bench or not, he has sought the arrangement as mentioned in the reliefs.

Before going into the reliefs sought by the Applicant, it is pertinent to mention that order dated 21.10.2019 passed by this Bench categorically discloses that since the Honorable NCLAT through order dated 15.10.2018 having stayed the proceedings pending against the group companies of IL & FS, and the Corporate Debtor being the group company of IL & FS, this Bench dismissed the company petition admitted against this Corporate Debtor with liberty to the parties to approach if any further development warranting intervention of this Bench.

When main Company Petition itself was dismissed, this Bench will not have jurisdiction under IBC to pass an order appointing an Officer-in-Charge/Administrator to deal with the affairs of the Corporate Debtor, unless the Company Petition dismissed has been restored. As to proceedings under IBC, this Bench would get jurisdiction to interfere with the affairs of the company only after initiation of CIRP, once main CP is dismissed, this Bench will become functus officio. For this Adjudicating Authority has not been conferred with power of Review, it cannot revisit its own order. As to liberty given in the order dated 21.10.2019, this liberty will not confer jurisdiction upon it which is not provided in the Code. Above this, assuming this Bench grants relief sought by this applicant, this will tantamount to interfering with the stay order already granted by Honorable NCLAT on 15.10.2018.

In view of the same, this unnumbered application is hereby dismissed as misconceived.