Delhi High Court - Orders
Lr Builders Pvt. Ltd vs Union Of India & Ors on 12 March, 2024
Author: Dharmesh Sharma
Bench: Dharmesh Sharma
$~50
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 3158/2024
LR BUILDERS PVT. LTD. ..... Petitioner
Through: Mr. Madhav Khurrana, Ms.
Jyoti Taneja, Ms. Muskan Puri,
Mr. Sanjivani Pattjoshi and Ms.
Ishika, Advs.
versus
UNION OF INDIA & ORS. ..... Respondents
Through: Mr. Ankur Mittal and Mr.
Bhaskar Pandey, Advs. for R-2.
CORAM:
HON'BLE MR. JUSTICE DHARMESH SHARMA
ORDER
% 12.03.2024 CM APPL. 15066/2024
1. This is an application moved in the pending Writ Petition by the petitioner seeking following directions:
"(a) Stay the proceedings initiated under Section 7 of the Insolvency And Bankruptcy Code by Respondent No.2 against the Petitioner before Ld. NCLT 3, New Delhi Vide CP(IBC) No. 612 Of 2022 and OA 364/2016 alongwith TA 248/2023 pending before Ld. DRT 2 and 3, respectively, during the pendency of the instant Writ Petition.; AND
(b) Pass any other order this Hon‟ble Court may deem fit in the interest of justice."
2. Learned counsel for the respondent No.2 i.e. SBI1 is present on advance notice.
3. The long and short of the submissions made by the learned counsel for the petitioner is that their application bearing IA No. 4749/2022 in CP-IB-612/ND/2022 dated 29.09.2022 moved under 1 State Bank of India This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 13/03/2024 at 22:41:01 Section 65 of the IBC2 is not being taken up for hearing by the NCLT3 and instead the NCLT is proceeding to hear the application of the applicant/respondent No.2-SBI under Section 7 of the IBC.
4. Learned counsel for the petitioner submitted that initially respondent No.2-SBI had filed a complaint case No. 5105/2022 under Section 14 of the SARFAESI Act4 against the principal borrower M/s. PP Jewellers Private Limited (for short 'PP Jewellers') and the learned Chief Metropolitan Magistrate, North-West District, Delhi vide order dated 04.06.2022 was pleased to observe that the officials of the SBI were in collusion with the principal debtors and it was found that they have been raising illegal demands thereby manipulating and fabricated their record and the said complaint was dismissed. It is submitted that the said order has not been challenged by the SBI.
5. Learned counsel for the petitioner then alluded to the order dated 06.03.2024 to the effect that in the proceeding before the DRT-I, Delhi5 in TA-248/2023 vide order dated 06.03.2024 it was observed that a sum of Rs. 74 corers had already been deposited by the defendants No. 1 to 3 viz., the principal borrower PP Jewellers, Kamal Gupta and Mukesh Gupta with the bank for outstanding amount of Rs. 54 crores.
6. The long and short of the submissions is that the officials of the bank have been negotiating with the principal borrowers through Mr. Kamal Gupta and Mr. Mukesh Gupta for OTS6 for as many as 5-6 2 The Insolvency and Bankruptcy Code, 2016 3 National Company Law Tribunal 4 Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 5 Debt Recovery Tribunal 6 One Time Settlement This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 13/03/2024 at 22:41:01 times but in vain for their collusive disposition towards the credit facilities.
7. It is further urged that the respondent No.2/SBI is pressing reliefs under Section 7 of the IBC against the petitioner company despite the fact that no deed of guarantee has been executed or approved by the petitioner. Alluding to the sanction letter (Annexure P-10) dated 27.04.2015 it is pointed out that vide Clause (3) it contained a covenant that there has been change in the partnership deed w.e.f. 01.10.2014 whereby Mr. Kamal Gupta has exited as partner and his share has been replaced by his son Mr. Rahul Gupta in view of the change in partnership. It is submitted that it is also reflected that there were personal guarantees towards credit facility undertaken by Mr. Kamal Gupta, Mr. Mukesh Gupta and Ms. Veena Gupta, but the said sanction letter is surprisingly signed by Mr. Kamal Gupta only, who had already exited the firm. Further, inviting attention of this Court to the sanction letter for providing credit limits by the bank, the accompanying documents in the nature of corporate guarantee is unsigned and left in blanks and it is not supported by any resolution of the Board of Directors of the petitioner company.
8. It is vehemently urged that in the aforesaid backdrop, the only grievance of the petitioner is that IA No. 4749/2022 has not been considered by the NCLT despite the fact that matter came up for hearing on 02.11.2022, 16.02.2023, 01.08.2023 and 06.09.2023 and there would befall grave repercussions upon the petitioner company, which never stood as guarantor for the credit facilities in question and it is being made liable only in due to collusion between the erstwhile Directors, who are also the promoters and in-charge of state of affairs as the Directors of the principal borrower viz., PP Jewellers.
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 13/03/2024 at 22:41:01
9. Per contra, learned counsel for the SBI has vehemently urged that the credit facility and the relevant documents for guarantee were executed on 31.12.2011 and later renewed on 23.02.2012 and merely because there are apparently inter se disputes as amongst the Directors/ partners, the SBI cannot be denied to have recourse to its legal rights for recovery of amount of credit facilities and proceed as per law before the NCLT.
10. Prima facie, the issues raised by the learned counsel for the petitioner require deeper consideration. It would be expedient that the issues raised by the petitioner in context of Section 65 of the IBC be addressed prior to considering any purported action under Section 7 of the IBC as it would be entail serious financial repercussions on the functioning of the petitioner company. It was informed during the course of hearing that the matter is listed for hearing before the NCLT tomorrow i.e. 13.03.2024, hence, the present CM Application is disposed of with the direction that the NCLT is impressed upon to consider IA No. 4749/2022 under Section 65 of the IBC moved by the petitioner company before proceeding further in the matter on the application under Section 7 of the IBC moved by the SBI.
11. Nothing contained herein shall tantamount to an expression of opinion on the merits of the case.
12. A copy of this order be given dasti under the signatures of the Court Master.
13. Re-notify on the date already fixed i.e. 24.04.2024.
DHARMESH SHARMA, J.
MARCH 12, 2024 Sadiq This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 13/03/2024 at 22:41:01