Calcutta High Court (Appellete Side)
Atin Arora vs Oriental Bank Of Commerce & Anr on 22 November, 2019
Author: Shampa Sarkar
Bench: Shampa Sarkar
22.11.2019 Court No. 19 Item No. 35 Ashoke C.O. 3894 of 2019 Atin Arora
-versus-
Oriental Bank of Commerce & Anr.
Mr. Mainak Bose, Mr. Rishabh Karnani, Mr. Shoked Akhter, Mr. Neraj Pandey.
... For the Petitioner.
This application has been filed against an order dated November 5, 2019 passed by the National Company Law Tribunal, Kolkata Bench, in C.A. (IB) No. 1285/KB/2019 arising out of C.P. (IB) No. 107/KB/2019.
It is the contention of the petitioner/ company that the learned Tribunal, Kolkata Bench, did not have the territorial jurisdiction to entertain the application filed by the opposite party, Oriental Bank of Commerce.
Mr. Mainak Bose, learned advocate, appearing for the petitioner submits that the registered office of the company was shifted to Odisha on January 16, 2018. The certificate issued by the Registrar of Companies under section 13(V) of the Companies Act, 2013 also proves the said fact. It appears that by communication dated June 22, 2017 the petitioner company had intimated the opposite bank about its desire to shift the registered office to the State of Odisha and sought for 'No Objection'. Mr. Bose, further, relies on an order passed by the Regional Director, Ministry of Corporate Affairs, Kolkata, which states that the said Regional Director had not received any objection from any one with regard to the shifting of the registered office of the company. According to Mr. Bose, the registered office of the company was shifted to Odisha as per the procedure established by law and the bank had knowledge of the same. The institution of the proceeding under Section 7 of the Insolvency & Bankruptcy Code, 2016 (hereinafter referred to as 'the said Code') in Kolkata, was wholly contrary to law and the admission of such proceeding by the said tribunal was illegal exercise of jurisdiction and void ab initio.
By an order dated September 5, 2019 the learned Tribunal admitted the application of the bank and made certain directions inter alia, for commencement of the corporate insolvency resolution process (CIRP). It is contended that when the company came to know about this, an application for recalling of the order was filed by the petitioner on the ground that the proceeding before the learned Tribunal was a bar under section 60 of the said Code and the order passed without jurisdiction be recalled.
Mr. Bose submits that Section 60 of the said Code specifically provides that insolvency proceeding should be carried out before a Tribunal under the said Code having territorial jurisdiction over the place where the registered office of the corporate person was located. According to Mr. Bose, as the registered office of the petitioner company was in Odisha, the application ought to have been filed before the NCLT of Odisha which was in existence at the time when the proceeding was initiated and the application of the bank was admitted.
When the application for recalling was admitted by the learned Tribunal and a prima-facie finding is on record to the effect that the registered office of the company was in Odisha. However, by the order impugned, the Tribunal has found that as the petitioner was in knowledge of the proceeding and had received communication by e-mail about the proceeding, then the same should have been contested. It also appears from the order that the Tribunal recorded that it had the territorial jurisdiction to hear the application when the same was filed by the financial creditor.
Prima facie, I find from the records that the registered office of the company shifted to Odisha on January 16, 2018 and the application of the opposite party bank was filed on January 9, 2019. The NCLT, Odisha, was notified on July, 15, 2018. The order of admission was passed on September 5, 2019.
An arguable case has been made out by the petitioner. Under such circumstances, the petitioner is directed to serve a copy of the application upon the opposite party by speed post with A/d and file affidavit of service on the next date.
List this matter on December 20, 2019.
In the mean time there shall be stay of all further proceedings in C.P. (1B) No. 107/KB/2019 upto February 29, 2020. The CIRP proceeding will also remain stayed upto February 29, 2020 or until further order whichever is earlier.
The point of maintainability of this application is kept open.
(Shampa Sarkar, J.) 1 4