Bombay High Court
Jitender Kumar Jain, Liquidator Of Aaj ... vs Union Of India Thru The Ministry Of ... on 18 October, 2023
Author: M.M. Sathaye
Bench: B. P. Colabawalla, M.M. Sathaye
This Order is Speaking to Minutes order of order dated //
6-WP-10244-2023.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 10244 OF 2023
Jitender Kumar Jain, Liquidator Of Aaj Ka ...Petitioner
Anand Papers Ltd.
Versus
Union Of India Through The Ministry Of ...Respondents
Corporate Affairs And Ors
WITH
INTERIM APPLICATION NO. 16241 OF 2023
IN
WRIT PETITION NO. 10244 OF 2023
State Bank of India ...Applicants
In the matter between:
Jitender Kumar Jain, Liquidator Of Aaj Ka ...Petitioner
Anand Papers Ltd.
Versus
Jitendra Kumar Jain ...Respondent
WITH
INTERIM APPLICATION NO. 15868 OF 2023
IN
WRIT PETITION NO. 10244 OF 2023
M/s Kwality Catering Services through Its ...Applicant
Authorised Signatory
In the matter between:
Jitender Kumar Jain, Liquidator Of Aaj Ka ...Petitioner
Anand Papers Ltd.
Versus
Jitender Kumar Jain, Liquidator Of Aaj Ka ...Respondents
Anand Papers Ltd.
Page 1 of 13
OCTOBER 18, 2023
Shubham Talle
This Order is Speaking to Minutes order of order dated //
6-WP-10244-2023.doc
WITH
INTERIM APPLICATION NO. 15869 OF 2023
IN
WRIT PETITION NO. 10244 OF 2023
Mrs. Ritu Anand Agarwal And Ors ...Applicants
In the matter between:
Jitender Kumar Jain, Liquidator Of Aaj Ka ...Petitioner
Anand Papers Ltd.
Versus
Jitender Kumar Jain, Liquidator Of Aaj Ka ...Respondents
Anand And Ors
WITH
INTERIM APPLICATION NO. 14368 OF 2023
IN
WRIT PETITION NO. 10244 OF 2023
Jitender Kumar Jain, Liquidator Of Aaj Ka ...Applicant/Petitioner
Anand Papers Ltd.
Versus
Union Of India Through The Ministry Of ...Respondents
Corporate Affairs And Ors
WITH
INTERIM APPLICATION NO. 15867 OF 2023
IN
WRIT PETITION NO. 10244 OF 2023
Aaj Ka Anand Publications LLP Licensee In ...Applicant
The Premises
In the matter between:
Jitender Kumar Jain, Liquidator Of Aaj Ka ...Petitioner
Anand Papers Ltd.
Versus
Jitender Kumar Jain, Liquidator Of Aaj Ka ...Respondents
Anand Papers Ltd.
Page 2 of 13
OCTOBER 18, 2023
Shubham Talle
This Order is Speaking to Minutes order of order dated //
6-WP-10244-2023.doc
Mr. Arun Amin i/by Argus Partners, Advocates for
Petitioner. In IA/No. 14368/2023 in WP.No./10244 /2023.
Mrs. S.D. Vyas, 'B' Panel Counsel, for the State/Respondent.
Mr.Durgesh Rege a/w Rushi Alag, Advocates for Applicant
in IA/15869/2023.
CORAM : B. P. COLABAWALLA &
M.M. SATHAYE, JJ.
DATE : OCTOBER 18, 2023 P. C.
1. A Praecipe is moved for speaking to the minutes of the Order dated 12.10.2023. Mistake in the Order pointed out, is in the appearance column of the said Order.
2. The learned Advocate appearing on behalf of the Petitioner submitted that the words "India Law LLP" be substituted with the words "M/s. Argus Partners".
3. In these circumstances, in the appearance column of the Order dated 12.10.2023, the words "India Law LLP", shall be substituted with the words "M/s. Argus Partners". Page 3 of 13
OCTOBER 18, 2023 Shubham Talle This Order is Speaking to Minutes order of order dated // 6-WP-10244-2023.doc
4. No further correction is sought. The correction shall be carried out in the original Order as well as in the copy uploaded on the server.
5. The Praecipe is accordingly disposed of. No Order as to costs.
6. This order will be digitally signed by the Private Secretary/Personal Assistant of this Court. All concerned will act on production by fax or email of a digitally signed copy of this order. [ M.M. SATHAYE, J.] [ B. P. COLABAWALLA, J.] For the sake of convenience, the Order dated 12.10.2023 (as corrected) reads thus:
IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 10244 OF 2023 Jitender Kumar Jain, Liquidator Of Aaj Ka ...Petitioner Anand Papers Ltd.
Versus Union Of India Through The Ministry Of ...Respondents Corporate Affairs And Ors WITH Page 4 of 13 OCTOBER 18, 2023 Shubham Talle This Order is Speaking to Minutes order of order dated // 6-WP-10244-2023.doc INTERIM APPLICATION NO. 15869 OF 2023 IN WRIT PETITION NO. 10244 OF 2023 Mrs. Ritu Anand Agarwal And Ors ...Applicants In the matter between:
Jitender Kumar Jain, Liquidator Of Aaj Ka ...Petitioner Anand Papers Ltd.
Versus Union of India and Ors. ...Respondents WITH INTERIM APPLICATION NO. 15868 OF 2023 IN WRIT PETITION NO. 10244 OF 2023 M/s Kwality Catering Services through Its ...Applicant Authorised Signatory In the matter between:
Jitender Kumar Jain, Liquidator Of Aaj Ka ...Petitioner Anand Papers Ltd.
Versus Union of India and Ors. ...Respondents WITH INTERIM APPLICATION NO. 15867 OF 2023 IN WRIT PETITION NO. 10244 OF 2023 Aaj Ka Anand Publications LLP Licensee In ...Applicant The Premises In the matter between:
Jitender Kumar Jain, Liquidator Of Aaj Ka ...Petitioner Anand Papers Ltd.
Versus Union of India and Ors. ...Respondents Page 5 of 13 OCTOBER 18, 2023 Shubham Talle This Order is Speaking to Minutes order of order dated // 6-WP-10244-2023.doc WITH INTERIM APPLICATION (ST) NO. 27733 OF 2023 IN WRIT PETITION NO. 10244 OF 2023 State Bank Of India ...Applicant In the matter between: ...Petitioner Jitender Kumar Jain, Liquidator Of Aaj Ka Anand Papers Ltd.
Versus Union of India and Ors. ...Respondents WITH INTERIM APPLICATION NO. 14368 OF 2023 IN WRIT PETITION NO. 10244 OF 2023 Jitender Kumar Jain, Liquidator Of Aaj Ka ...Applicant/Petitioner Anand Papers Ltd.
Versus Union Of India Through The Ministry Of ...Respondents Corporate Affairs And Ors Mr. Nimay Dave a/w Adv Rahul Dev a/w Adv Arjun Amin i/b M/s. Argus Partners, Advocate for Petitioner/Applicant in IA/14368/23.
Mr. Aniket Dighe a/w Kaveri Narkar i/b Bhal & Co. for Intervenor-Edelweiss Asset Reconstruction Co. Ltd. (Secured Creditor).
Mr.Shyam Kapadia a/w Merlyn Vasudeo Monteiro, for Applicant/Intervenor in IA/27733/23. Mr.Mayank Bagla a/w Durgesh Rege & Hiten Lala for Applicant in IA/15869/23.
Page 6 of 13
OCTOBER 18, 2023 Shubham Talle This Order is Speaking to Minutes order of order dated // 6-WP-10244-2023.doc Mr. Prathamesh Kamat i/b Adv Jayesh Rathod for Applicant in IA/15867/23.
Mr. Ashish Kamat, Senior Counsel a/w Saurabh Patil for Applicant in IA/15868/23.
Mr. Ashish Mehta a/w Sneha Mahavate i/b Ethos Legal Alliance for Respondent Nos.1 & 2.
Mrs. S.D.Vyas, 'B' Panel Counsel, for the State/Respondent. Mr. Aditya Haldpiur, Legal Manager, Edelweiss ARC is present in court.
Mr. Melwyn D'Costa, Chief Manager, SBI is present in court. Ms. Ritu Anand Agarwal, Ms. Sarika Navin Agarwal, Mr. Hiren Anand Agarwal - Suspended Directors for Corporate Debtor in IA/15869/23 are present in court.
CORAM : B. P. COLABAWALLA &
M.M. SATHAYE, JJ.
DATE : OCTOBER 12, 2023
P. C.
1. Mr. Ashish Kamath, the learned Senior counsel appearing on behalf of M/s. Kwality Catering Services through its authorised signatory for the Applicant in Interim Application No.15868 of 2023, states that they have filed the said Interim Application to intervene in the above writ petition because any orders passed therein would directly Page 7 of 13 OCTOBER 18, 2023 Shubham Talle This Order is Speaking to Minutes order of order dated // 6-WP-10244-2023.doc affect their rights. This Interim Application [IA No. 15868 of 2023] has been served upon the Petitioner in Court on 06.10.2023.
2. Mr. Mayank Bagla, the learned counsel appearing on behalf of the suspended Directors (Ms. Ritu Anand Agarwal, Ms. Sarika Navin Agarwal and Mr. Hiren Anand Agarwal) of the Corporate Debtor, has stated that the said suspended Directors have also filed an intervention application being Interim Application No. 15869 of 2023. He too has stated that the said Interim Application was served on the Advocate for the Petitioner in Court on 06.10.2023.
3. Mr. Prathamesh Kamat, the learned counsel appearing on behalf of a third party namely "Aaj Ka Anand Publication LLP" has stated that they also have filed Interim Application No. 15867 of 2023 to intervene in the above Writ Petition. He also has stated that this intervention Application was served on the Advocates for the Petitioner in Court on 06.10.2023. He submitted that as on today, admittedly, Aaj Ka Anand Publication LLP continues to be in occupation of office premises on the first floor of a building named "Aaj Ka Anand" together with one car parking situated at final plot No. 713+714/6, CTS No. 364 + 365/6 Bhamburda [Shivaji Nagar], Taluka Haveli, District-Pune under a leave and licence agreement dated 30.06.2021 entered into between the Page 8 of 13 OCTOBER 18, 2023 Shubham Talle This Order is Speaking to Minutes order of order dated // 6-WP-10244-2023.doc Applicant [Aaj Ka Anand Publication LLP] and the Corporate Debtor [Aaj Ka Anand Papers Ltd]. He submitted that until his Interim Application is heard, he ought not to be dispossessed from his licenced premises.
4. In answer to this, Mr. Dave, the learned counsel appearing on behalf of the Petitioner, as well as Mr. Shyam Kapadia, the learned counsel appearing on behalf of the secured creditor [State Bank of India, the Applicant in IA (ST) No. 27733 of 2023] submitted that the aforesaid leave and licence agreement has not only been entered into after the filing of a petition by SBI under Section 7 of the Insolvency and Bankruptcy Code, 2016, but even after a securitisation notice under Section 13 (2) of the SARFAESI Act, 2002 was issued to the Corporate Debtor. They submitted that by virtue of Section 13(13) of the SARFAESI Act, 2002 no leave and licence agreement could have been created in favour of Mr. Prathmesh Kamat's client as there is a statutory bar under the said provision. There was also a dispute on what was the area being occupied by Aaj Ka Anand Publication LLP.
5. Be that as it may, as a working arrangement, and without prejudice to the rights and contentions of all parties, Mr. Prathamesh Kamat on telephonic instructions of Mr. Anand Agarwal, has stated that Page 9 of 13 OCTOBER 18, 2023 Shubham Talle This Order is Speaking to Minutes order of order dated // 6-WP-10244-2023.doc even though the leave and licence agreement is for an area of 2043 sq. ft, [carpet area], since the LLP is occupying the entire first floor, and in a valuation report procured by Mr. Anand Agarwal [as a Director of the Corporate Debtor] shows the area of the first floor as 3948 sq.ft. carpet area, he would pay the arrears of licence fees for this entire area as a condition precedent of not being dispossessed. It is common ground before us that the arrears of licence fees calculated at the rate of Rs.99.19 per sq. ft. upto 31 st October, 2023 would come to Rs.74,40,440/-. On this amount, 18% GST would also have to be paid which comes to Rs.13,39,279/-. Hence, the total amount that the LLP would pay over to the Liquidator would be an amount of Rs.87,79,720/-.
Mr. Prathamesh Kamat, on instructions, submitted that the aforesaid amount would be paid in three installments as under :
a) Rs. 37,00,000/- by 19.10.2023;
b) Rs.20,00,000/- by 31.10.2023;
c) Rs.30,79,720/- by 15.11.2023.
6. Mr. Prathamesh Kamat further submitted that these amounts shall be transmitted to the Liquidation Bank account of Aaj ka Anand Papers Limited [Corporate Debtor], the details of which are as under : Page 10 of 13
OCTOBER 18, 2023 Shubham Talle This Order is Speaking to Minutes order of order dated // 6-WP-10244-2023.doc Beneficiary Aaj Ka Anand Papers Limited - In Liquidation Bank and Branch Kotak Mahindra Bank Ltd., Sharda Terraces, Address Plot No. 65, Sector - 11, CBD Belapur, Navi Mumbai, Maharashtra - 400614.
Account No. 8748059205 IFSC Code KKBK0000660
7. Considering the statement made by Mr. Prathmesh Kamat, which are accepted as undertakings to this Court, we direct that the Applicant in Interim Application No. 15867 of 2023 [Aaj Ka Anand Publication LLP] shall not be dispossessed from the first floor premises of the building named Aaj Ka Anand until further orders. This is subject to the fact that there is no default committed in the payments of the amounts mentioned above. Mr. Prathmesh Kamat, on instructions, has further agreed that even if a single default is committed, possession of the entire first floor premises shall be handed over by the LLP to the liquidator [the Petitioner herein]. It is ordered that if for any reason they fail to do so, the Shivaji Nagar Police Station shall give all assistance to the liquidator [including deputing adequate number of police personnel] to ensure that he is able to take physical possession of the first floor premises. It is needless to clarify this is only a pro-tem arrangement without prejudice to the rights and contentions of all the parties, including without prejudice to the liquidator's application filed before Page 11 of 13 OCTOBER 18, 2023 Shubham Talle This Order is Speaking to Minutes order of order dated // 6-WP-10244-2023.doc the NCLT impugning the leave and licence agreement entered into by the Corporate Debtor with Aaj Ka Anand Publication LLP.
8. Mr. Dave, the learned counsel appearing on behalf of the Petitioner submitted that before IA Nos. 15867 of 2023, 15868 of 2023 and 15869 of 2023 are finally decided, some time may be given to the Petitioner to file affidavits-in-reply in all the aforesaid three Interim Applications. He therefore requested that time be granted to file the affidavits-in-reply on or before 26.10.2023. The same request was also made by Mr. Shyam Kapadia, the learned counsel appearing on behalf of SBI [Applicant in IA(ST) No. 27733 of 2023] and Mr. Aniket Dighe, the learned Advocate appearing on behalf of Edelweiss ARC Ltd [the other secured creditor].
9. In these circumstances, it is directed that the Petitioner as well as SBI and Edelweiss ARC Ltd shall file an affidavit-in-reply to the aforesaid three Interim Applications on or before 26.10.2023 and serve a copy of the same on the Advocates for the respective Applicants. A copy of the aforesaid three Interim Applications i.e. IA Nos. 15867 of 2023, 15868 of 2023 and 15869 of 2023 shall be supplied by the Advocate for the Petitioner, to the Advocate of SBI as well as the Advocate of Edelweiss ARC Ltd during the course of today. Page 12 of 13
OCTOBER 18, 2023 Shubham Talle This Order is Speaking to Minutes order of order dated // 6-WP-10244-2023.doc
10. If the respective Applicants want to file any affidavit-in-rejoinder to any of the affidavits filed either by the Petitioner or by SBI and/or Edelweiss ARC Ltd, they may do so on or before 30.10.2023.
11. Place the above writ petition along with all the above Interim Applications on 01.11.2023 [HOB].
12. This order will be digitally signed by the Private Secretary/Personal Assistant of this Court. All concerned will act on production by fax or email of a digitally signed copy of this order. [ M.M. SATHAYE, J.] [ B. P. COLABAWALLA, J.] Page 13 of 13 OCTOBER 18, 2023 Shubham Talle Signed by: Shubham A Talle Designation: PA To Honourable Judge Date: 20/10/2023 16:35:24