Mr. Mahesh Sureka Resolution Professional Vs. Minesh Prints Limited & others, - The Applicant has sought directions from this Tribunal to make the Suspended Board to contribute to the Corporate Debtor in terms of Section 19(2) of the Code, to the extent the money is not paid by the stated parties. However, we are of the considered view that such directions are not permissible under section 19(2) and this Bench can not direct them to co-operate.

  NCLT Mumbai-1 (03.01.2023) in Mr. Mahesh Sureka Resolution Professional  Vs. Minesh Prints Limited & others,  [I.A. 87 OF 2021 in C.P.(IB) No. 4461/MB/2019 ] held that;

• The Applicant has sought directions from this Tribunal to make the Suspended Board to contribute to the Corporate Debtor in terms of Section 19(2) of the Code, to the extent the money is not paid by the stated parties. However, we are of the considered view that such directions are not permissible under section 19(2) and this Bench can not direct them to co-operate. 

• Had this Application been filed in terms of Section 66 of the Code meeting the conditions precedent provided therein, this Bench could have assumed jurisdiction to consider the prayer of the Application, if such prayer would otherwise be permissible under that Section.

• We are of considered view that the Applicant has lien over such Goods as “Unpaid Seller” in terms of Provisions contained in Section 47 of Sale of Goods Act, 1930. Accordingly, no specific direction is necessary from this Tribunal.

Excerpts of the order;

# 1. This Application IA 87/2021 is filed by Sh. Mahesh Sureka, the Resolution Professional (“Applicant”) of the M/s Minesh Prints Limited (“Corporate Debtor”) against the Respondents, which includes Corporate Debtor & the Suspended Directors as Respondent No. 1-4, and the Debtor parties from the outstanding balances towards sale are receivable by the Corporate Debtor as Respondent No. 5 to 19. The Applicant has sought following reliefs:

• a. Direction to the Respondents 1,2,3,4 to assist Resolution Professional to recover the amount from sundry debtors or to identify the stocks which sundry debtors may opt to return to Resolution Professional;

• b. Directions to the Respondents No 5 to 19 to make immediate payment or return the goods, assist Resolution professional to recover the amount from sundry debtors or to identify the stock which sundry debtors may opt to return to Resolution professional.

# 2. The Applicant was appointed as the Interim Resolution Professional of Minesh Prints Limited, by this Tribunal vide its order dated 04-03-2020 passed in CP (IB) 4461 (MB) 2019 admitting the Corporate Debtor into the Corporate Insolvency Resolution Process (“CIRP”).

# 3. It is stated that the CIRP commenced pursuant to application filed by the Corporate Debtor’s Suspended Board in terms of Section 10 of the Insolvency & Bankruptcy Code, 2016 (“Code”). The Respondent No. 3 is the brother of Respondent No. 2 and The Respondent No. 4 is the son of Respondent No. 2. Prior to initiation of Corporate Insolvency Resolution Process ("CIRP") of the Corporate Debtor, the Respondents are stated to be in charge, responsible for and managing and controlling all the business and affairs of the Corporate Debtor and as such have been well aware and possess all the relevant information and documents in relation to the Corporate Debtor including but not limited to its financial position, assets and liabilities.

3.1.The Applicant is constrained to prefer the present Application under Section 19(2), and 60 (5) of the Insolvency and Bankruptcy Code, 2016 ("Code") read with Regulation of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Person)) Regulations, 2016 ("CIRP") seeking appropriate orders and directions from this Hon'ble Tribunal on account of the non-co-operation from the Respondent No 5,6,7,8,9,10,11,12,13,14,15,16,17,18,19 as sundry debtors of the corporate debtor and from Respondent no 1,2,3,4, for not taking any action for recovery of dues for last 2 and half years intentionally. Non collection of dues from these sundry debtors is affecting the CIRP process.

3.2.The details of the sundry debtors is as follows : 

i. Asha Textile Rs. 7, 19, 92,461/- (Rupees Seven Crore Nineteen Lakhs, Ninety Two Thousand Four Hundred and Sixty One only). The outstanding is pending from June 2017 and since at the time of initiation of CIRP period the debt was within 3 year and hence the entire amount is under limitation period.

ii. Bhagwati Enterprises Rs. 7, 40, 35,557/- (Rupees Seven Crore Forty Lakhs, Thirty Five Thousand Five Hundred and Fifty Seven Only). The outstanding is pending from June 2017 and since at the time of initiation of CIRP period the debt was within 3 year and hence the entire amount is under limitation period..

iii. Khushi Fabrics Rs.76,50,888/- (Rupees Seven Six Lakhs, Fifty Thousand Eight Hundred and Eighty Eight Only). The outstanding is pending from June 2017 and since at the time of initiation of CIRP period the debt was within 3 under limitation period..

iv. Mahalaxmi Fashion Rs 56,61,588/- (Rupees Fifty Six Lakhs, Sixty One Thousand Five Hundred and Righty Eight Only) The outstanding is pending from June 2017 and since at the time of initiation of CIRP period the debt was within 3 year and hence the entire amount is under limitation period.

v. Sona Synthetic Rs 84,87,006/-(Rupees Eighty Four Lakhs, Eighty Seven Thousand and Six Only). The outstanding is pending from June 2017 and since at the time of initiation of CIRP period the debt was within 3 year and hence the entire amount is under limitation period..

vi. Sparsh Silk Mills Rs. 1,20,80,431/- (Rupees One Crore Twenty Lakhs, Eighty Thousand Four Hundred and Thirty One Only). The outstanding is pending from much earlier of April, 2017

vii. SR Silk Fashion Rs. 39,29,876/-(Rupees Thirty Nine Lakhs, Twenty Nine Thousand Eight

Hundred and Seventy Six Only). The outstanding is pending from much earlier of April, 2017.

viii. Devka Art Pvt Ltd Rs 6,694/- (Rupees Six Thousand Six Hundred and Ninety Four Only).

The outstanding is pending from much earlier of April 2017.

ix. Gomati Sales Corporation Rs. 8,61,500/- (Rupees Eight Lakhs, Sixty One Thousand Five Hundred Only). The outstanding is pending for sale of fixed assets ie machinery.

x. Himeer Textile Rs. 1,26,416/-(Rupees One Lakhs, Twenty Six Thousand Four Hundred and Sixteen Only). Running Account but from April, 2019 no activity

xi. Lotus Industries Rs. 4,00,997/- (Rupees Four Lakhs, Nine Hundred and Ninety Seven Only). Running Account but from April, 2019 no activity

xii. Prabhat Industries Rs 2,70,090/- (Rupees Two Lakhs, Seventy Thousand and Ninety Only). The outstanding is pending from much earlier of April 2017

xiii. Sangeeta Fashion Rs. 3,63,607/- (Rupees Three Lakhs, Sixty Three Thousand Six Hundred and Seven Only). Running Account but from April, 2019 no activity

xiv. Vaibhav Fashions Fab Rs14,835/- (Rupees Fourteen Thousand Eight Hundred and Thirty Five Only). The outstanding is pending from much earlier of April 2017

xv. Yash Art Rs 13,515/- (Rupees Thirteen Thousand Five Hundred and Fifteen Only) The outstanding is pending starting from April 2017 amount is too big of Rs. 18, 58, 95,460 (Rupees Eighteen Crore Fifty Eight Lakhs Ninety Five Thousand Four Hundred and Sixty Only). More than 50% of the amount is for June 2017 ie: just before the starting of GST Taxation.

3.3.It is stated that if sundry debtors have any issue for non payment than they would have returned the goods or should be ready to hand over the stock to Resolution professional. If sundry debtors are not making payment and neither ready to hand over the stock back to Resolution professional and members of the board of the suspended directors have not taken any legal action, it implies that all respondent are tied up with each other. The Applicant is stated to have tried to call them and discussed with them and also sent notices to them for payment.

3.4.It is stated that the Applicant Resolution Professional has discussed and kept this matter in the 3rd CoC and have now taken up the matter with this Tribunal which has been discussed in the 3 COC meeting.

3.5.In view of the aforesaid facts and circumstances, the Applicant has stated that it is just and necessary and in the interest of justice that appropriate orders should be passed to makes CIRP process as transparent and the resolution applicant, if any, can comes out with reasonable terms for all creditors who have filed their claims; the sundry debtors should be asked to make payment immediately or hand over the material back to Resolution Professional as for non-payment of material, this stock should be considered as asset of corporate debtor; and the members of the board of the suspended director should be directed to assist the Resolution professional in identifying the stock and taking back the material.

# 4. The Respondents No. 2, 3 and 4 have filed the Reply jointly stating that the present application seeks reliefs that fall outside the jurisdiction of this Tribunal and the Applicant is attempting to convert this Tribunal into a money recovery forum for Corporate Debtor, and the Resolution Professional is also attempting to outsource his responsibilities and duties to the Suspended Directors. It is further pleaded that the reliefs sought in the present application against the suspended directors are completely vague and ambiguous, hence it must be dismissed in limine.

4.1.It is further stated that The CIRP period of 180 days has expired and the Respondents are not aware of any resolution passed by the CoC for extension of the CIRP period or any order extending the CIRP period passed by this Tribunal. Accordingly, the Applicant is now functus office after expiry of 180 days from 24th March, 2020.

# 5. We have heard the Learned Counsel and perused the material available on record.

5.1.We find that the Applicant is seeking directions for cooperation from the Sundry Debtors and the Suspended Directors in realisation of debts owed by the Sundry Debtors to the Corporate Debtor for goods sold to them prior in time. The Applicant has stated the position of such debtors in the application and has pleaded that most of such debts are overdue and in some cases, no business is being done with such parties. Needless to say, the Sundry Debtors ought to have paid this money without intervention of this Tribunal, as this money is owed to the Corporate Debtor by them and Suspended Directors are statutory obligations to assist the Resolution Professional in realisation of these debts.

5.2.The Applicant has sought directions from this Tribunal to make the Suspended Board to contribute to the Corporate Debtor in terms of Section 19(2) of the Code, to the extent the money is not paid by the stated parties. However, we are of the considered view that such directions are not permissible under section 19(2) and this Bench can not direct them to co-operate. Had this Application been filed in terms of Section 66 of the Code meeting the conditions precedent provided therein, this Bench could have assumed jurisdiction to consider the prayer of the Application, if such prayer would otherwise be permissible under that Section.

5.3.The Applicant has also sought the directions to the Sundry Debtors stated in this Application to pay towards outstanding dues or return the goods lying unsold with them. We are of considered view that the Applicant has lien over such Goods as “Unpaid Seller” in terms of Provisions contained in Section 47 of Sale of Goods Act, 1930. Accordingly, no specific direction is necessary from this Tribunal. As regards payment of debts owed by them to the Corporate Debtor, we are of considered view that these debtors are under an obligation to pay the same to the Corporate Debtor and must pay the same. To this extent, we consider it appropriate to direct Respondent No 5 to 19 to co-operate the Applicant in realisation of the debts owed by them to the Corporate Debtor without any further delay. Needless to say, the Respondent No. 1 to 4 shall extend necessary co-operation, as sought by the Applicant from time to time, to expedite the realisation of these debts.

# 6. In view of aforesaid directions, this IA 87/2021 is partly allowed and disposed of accordingly.

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Pankaj Srivastava Vs. Narappa Manohar Reddy. - Provisions of Section 19 shall apply in relation to voluntary liquidation process as they apply in relation to liquidation process with the substitution of references to the liquidator for references to the interim resolution professional.

 NCLT Bengaluru (23.06.2023) In Pankaj Srivastava Vs. Narappa Manohar Reddy. [IA No. 361 of 2021 & I.A No. 568 of 2022 In CP (IB) No. 243/BB/2018] held that;

• Provisions of Section 19 shall apply in relation to voluntary liquidation process as they apply in relation to liquidation process with the substitution of references to the liquidator for references to the interim resolution professional.

Excerpts of the order;  

IA NO 361 OF 2021

# 1. The instant application has been filed by Resolution Professional (herein after ‘applicant’) under Section 19 (2) r/w 60 (5) of the I & B Code, 2016 interalia seeking directions to provide all the original documents in the possession of the respondents in support of acquisition of lands as appearing in the Audited Financial Statements namely, Land parcels for Rs.5.19 Cr, Land parcels forming part of sale agreement dated 11.10.2018 admeasuring about 21.39 acres and amounting to Rs.12.40 Cr, allow the resolution professional to take possession of all the records related to financial statements as well as land documents and issue appropriate directions to Ex-Directors/Management for extending full cooperation and to provide necessary information to the resolution professional for completing the required compliances to various statutes and a successful completion of CIRP. On 4.11.2022, this Tribunal approved the Liquidation of M/s Sagar Power (Neerukatte) Private Limited, the Corporate Debtor and appointed the Applicant/Resolution Professional as the Liquidator.

# 2. Brief facts of the case, as mentioned in the application which are relevant to the issue in question, are as follows: 

• I. In the meeting of CoC held on 28.12.2020, the requests were made by the CoC to the respondents to provide numerous information with regard to the land parcels of the Corporate Debtor, its other liabilities, books of accounts, etc. to properly assess the financial position of the Corporate Debtor .the applicant has not been provided the necessary information and assistance since Jan 2021.

• II. In spite of the Covid 19 lock down restrictions by the Central Government and respective State Governments, the respondents have continued to not co operate and comply with the directions and requests of the applicant. The Auditors of the Company appointed by the Erstwhile Directors have in their letter dated 15.02.2021 expressed their inability to sign the audited financial statement for the period 1st April 2019 to 31st March 2020 which includes audit of books of accounts up to Insolvency commencement date as on 27.09.2019, due to refusal of Erstwhile Directors to sign the Audited Statements.

• III. The respondents have time to time failed to provide information with respect to an amount of Rs.5.19 Crores is capitalized as Landin the books of the Corporate Debtor and appears in the Audited Balance sheet as at 31.03.2019, documents in support of transfer of land admeasuring 21.39 acres in the name of the Corporate Debtor by way of sale agreement dated 11.10.2018 for which corporate debtor has compensated the seller being the ex directors to the tune of Rs.12.40 Crores. The respondents have failed to register the said property by way of entering into a sale deed with the Corporate Debtor, original documents of the various land parcels as listed in the sale agreement have not been handed over to the resolution professional. The accounts upto 31.03.2020, as respondents as Directors holding office as on the date and fully in control of the business upto 27th Sep 2019 being the date of order of admission of the Corporate Debtor under Corporate Insolvency Resolution Process, have refused to sign the financial statements resulting in failure of completing annual compliances with various regulatory authorities. 

• IV. The registered office of the Corporate Debtor has not been operational since the commencement of the Corporate Insolvency Resolution Process. The makeshift office of the Corporate Debtor where the erstwhile promoter’s conduct their other business and which was visited by the applicant does not contain most of the relevant documents and the officers stationed at the makeshift office are not aware of the whereabouts of the documentations and records of the Corporate Debtor.

• V. The applicant had issued a Legal Notice dated 09.09.2021, the respondent neither came forward to provide the information neither sought nor provided any reply to the said Legal notice.

• 
  

# 3. The Respondent No 1 has filed the reply for the application vide Diary No. 5184 dated 1.12.2022 inter alia contending as follows:

• a) The Respondent No 1 has furnished all the necessary information and has been providing the necessary assistance as and when required by the Resolution Professional in managing the affairs of the Corporate Debtor. The Board of Directors of the Corporate Debtor were suspended and the Resolution Professional has not convened any meeting of the Board to discuss the Accounts or Affairs of the Company nor convened any discussions to consider, draft and finalize the returns for the said period.

• b) It is submitted that the details of amount of Rs.5.19 Crores capitalised as land enclosed by the applicants as Annexure G along with the application is ledger extract and not the Audited Balance Sheet. The Balance Sheet for the period 2018-19 was neither signed by the auditor nor it was filed by the Resolution Professional.

• c) It is submitted that the Corporate Debtor was in requirement of the land for the purpose of storing water and the respondent no 1 being the promoter of the company had tried to mobilize land for the same and the agricultural land was mobilized to the extent of 100 Acres and some portion of land was registered and some portion of land is still in agreement stage and not executed as an absolute sale deed in the name of the Company. Out of the acquired land,21.39 Acres(which is in agreement stage) was not entered as absolute sale deed and was in the possession of the respondent no.1 and the consideration for the same has been paid.The banks were aware of the facts pertaining to the process and efforts and chronology with respect to Acquisition/mobilization of land.The Banks has insisted the Respondent No 1 to give the documents pertaining to land acquisition as security accordingly the same was given to the bank (all absolute sale deeds not sale agreements which banks desisted).Further clarification with respect to the land measuring 21,39 acres was provided by the respondent no 1 in his email date 27.07.2020.

• d) The fixed asset register is not required to claim the insurance. Further the applicant has not taken care of the insurance renewals because of which, the insurance amount could not be claimed.

# 4. The Respondent No 2 has filed the reply for the application vide Diary No. 857 dated 14.02.2023 inter alia contending as follows: 

• I. The respondent no 2 has commenced her tenure as the director of the corporate debtor from 11.04.2008 and thereafter, resigned from the post on 1.04.2019, she ceased to be part of the day today affairs of the company. Hence the documents sought by the resolution professional in the application are neither in the possession of the respondent no 2 nor in her control as an Ex-director.

• II. The management of the company is to be handled by the Board of directors but the provisions of sec 19 cannot be read to mean that whatsoever was the director of the company including the director who has resigned should be made responsible for extending co operation to the resolution professional.

# 5. The applicant has filed the rejoinder for the application vide Diary No. 5293 dated 08.12.2022, is inter alia contended as under: 

• a) The CoC meeting held on 28.12.2020, wherein the respondents were requested to furnish the information with respect to the land parcels and related assets, books of accounts etc for the proper assessment of the financial position of the Corporate Debtor. But the respondents gave a vague reply and did not furnish the information. The same was reflected in the minutes of the CoC meeting dated 29.12.2020.Further, the applicant sends various e-mails to the Respondents with respect to the land parcel, but no information was furnished to the applicant. The emails dated 20.10.2020 is attached as Annexure E to the application. Moreover, the Respondents have not signed the Audited Financial Statements for the FY 2019-2020 of the Corporate Debtor, which itself made the applicant to assess the true value of assets of the Corporate Debtor. 

• b) It is submitted that, after the audit undertaken by the applicant, it was clear that four land parcels were associated with the project of the Corporate Debtor of which specific details were mentioned along with survey nos and amounts. The Land Parcel no.4 was included in Fixed Asset Schedule of the Corporate Debtor Balance Sheet as on 31.03.2019 and as on 31.03.2018 and earlier years. 

• c) Therefore, the respondents failed to provide any information with respect to the land parcels and refused to cooperate with the Applicant, for the reasons best known to him.

# 6. Heard the Learned Counsel for the applicant. We have carefully perused the pleadings of the parties and extant provisions of the Code, and the Regulations made there under.

# 7. The relevant extract of the Section 19 IBC is as under:

• (1) The personnel of the corporate debtor, its promoters or any other person associated with the management of the corporate debtor shall extend all assistance and cooperation to the interim resolution professional as may be required by him in managing the affairs of the corporate debtor.’

• (2) Where any personnel of the corporate debtor, its promoter or any other person required to assist or cooperate with the interim resolution professional does not assist or cooperate, the interim resolution professional may make an application to the Adjudicating Authority for necessary directions. 

• (3) The Adjudicating Authority, on receiving an application under sub-section (2), shall by an order, direct such personnel or other person to comply with the instructions of the resolution professional and to co operate with him in collection of information and management of the corporate debtor.

# 8. In respect of Liquidation, it is necessary to reproduce Sec 34(3) of IBC which is as under:

• (3) The personnel of the corporate debtor shall extend all assistance and corporation to the liquidator as may be required by him in managing the affairs of the corporate debtor and provisions of Section 19 shall apply in relation to voluntary liquidation process as they apply in relation to liquidation process with the substitution of references to the liquidator for references to the interim resolution professional.”

# 9. It is desirable that, the respondents extend co operation to ensure that the Liquidator functions and conducts liquidation in terms of the provisions of Insolvency and Bankruptcy Code, 2016. Accordingly, as per Section 19 and section 34 of IBC, this Adjudicating Authority directs the respondent no 1 to provide all the original documents in the possession in support of acquisition of lands as appearing in the Audited Financial Statements.

# 10. Moreover, this Adjudicating Authority is of the view that the ex director/management collectively and independently, must furnish information and documents and extend full co operation to the liquidator for  completing the required compliances to various statutes for a successful completion of the liquidation of the Corporate Debtor. The respondents should co operate with the Liquidator in respect of supply of the documents as mentioned in prayers in the IA; and they cannot escape their obligation. Therefore this Adjudicating Authority in order to implement the intention of the Code directs the ex director/management to extent full co operation and simultaneously furnish all the requisite documents related to Corporate Debtor as desired in the prayers.

# 11. In the result the application is allowed with above directions. Accordingly IA NO 361 OF 2021 is disposed of.

IA NO 568 OF 2022

# 1. The instant application has been filed by Liquidator (herein after ‘applicant’) under Section 60 (5) of the I & B Code, r/w Rule 11 of the NCLT Rules, 2016 inter alia seeking to pass an interim order restraining the respondents from trespassing or dealing with the Schedule Property as well as other Properties or assets owned by the Corporate Debtor till the final disposal of CP (IB) No.243/BB/2018,pass an interim order to maintain the status –quo of the Corporate Debtor till the final disposal of CP (IB) No. 243 of 2018.

# 2. Brief facts of the case, as mentioned in the application which are relevant to the issue in question, are as follows:

• I. The applicant is seeking issuance of appropriate directions to the respondents to restrain them from illegally entering the property owned by the Corporate Debtor situated at Survey 463/2, Bajattur Village, Near Uppinangadi, Puttur Taluk,Dakshina Kannada District-574241 (hereinafter referred as the “Schedule Property”) as well as other Properties or assets owned by the Corporate Debtor in the surrounding areas of the Schedule Property measuring over 100 acres.

• II. On 17.10.2022, the Liquidator was informed that certain people had trespassed upon the Schedule Property owned by the Corporate Debtor.

• III. It is stated that with respect to the trespassing of the property of the corporate debtor by any persons including the respondent’s amounts to an illegal activity which is legally untenable as the corporate debtor is under liquidation and the matter is sub-judice.

# 3. Heard the Learned Counsel for the applicant. We have carefully perused the pleadings of the parties and extant provisions of the Code, and the Regulations made there under.

# 4. On 9.1.2023, when the matter was listed, this Tribunal issued notice. The proof of service filed by the applicant vide diary no 650 dated 02.02.2023, with tracking report with an endorsement showing ‘item delivery confirmed’, the respondents did not appear, therefore the respondents are proceeded against on an exparte basis.

# 5. We have observed that, trespassing of the Property of the corporate debtor by any persons including the respondents causes hindrance in the process of liquidation. Therefore respondents are restrained from trespassing or dealing with the Schedule Properties or assets owned by the corporate debtor and corporate debtor /liquidator is directed to maintain the status quo with regard to the Schedule Property till the disposal of CP (IB) NO 243/BB/2018.

# 6. Accordingly, IA No 568 of 2022 stands disposed of

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Mr. Ajay Kumar Siwach. Vs. Shri Virender Dawar (Director of Suspended Board of Corporate Debtor) & Ors. - The present application is filed under Section 19(2) of the Insolvency and Bankruptcy Code, 2016 to pass necessary directions to respondents to cooperate with the IRP which is not maintainable against Respondent No. 3 as this adjudicating authority cannot adjudicate upon the dispute between the parties.

 NCLT Chandigarh (28.02.2023) In Mr. Ajay Kumar Siwach. Vs. Shri Virender Dawar (Director of Suspended Board of Corporate Debtor) & Ors.[IA No. 295/2021 In CP (IB) No.19/ Chd/ Hry/ 2019 ] held that;

• The present application is filed under Section 19(2) of the Insolvency and Bankruptcy Code, 2016 to pass necessary directions to respondents to cooperate with the IRP which is not maintainable against Respondent No. 3 as this adjudicating authority cannot adjudicate upon the dispute between the parties. 

Excerpts of the order; 

IA No. 295/2021 The present application has been filed by Mr. Ajay Kumar Siwach, the Interim Resolution Professional of Dawar International Electronics Private Limited under Section 19(2) of the Insolvency and Bankruptcy Code, 2016. 

# 2. It is prayed by the applicant to issue necessary directions to all the Directors of the Suspended Board of the corporate debtor to extend assistance and to cooperate with the Interim Resolution Professional/ Resolution Professional with all the information and documents sought by him vide his email communications mentioned along with the custody of the assets of the Corporate Debtor. It is further prayed that necessary directions may be issued to Mr. Ajay Kumar Juneja who is in possession of the Land & Building and Stocks assets of the Corporate Debtor to extend assistance and hand over the possession of the assets of the Corporate Debtor and to cooperate with the Interim Resolution Professional/ Resolution Professional. 

# 3. The brief facts of the case as stated in the application are that the CIRP was initiated against the corporate debtor on 10.02.2021, and the applicant is appointed as Interim Resolution Professional. After the initiation of CIRP, the IRP/RP sent an intimation letter dated 15.02.2021 through speed post at the registered address of the corporate debtor and the email address available on the Master Date of MCA Website. The Speed post was returned with the remark “no information” & “left the place”. The email was also bounced back with remarks “delivery incomplete”. When the Interim Resolution Professional visited the property of the corporate debtor situated at 5/5 Jacubpura, Gurgaon – 122001, it is found that same is possessed by Mr. Ajay Kumar Juneja. The applicant came to know that the corporate debtor had an agreement to sale for the property and sale could not be completed for various reasons. The Interim Resolution Professional has requested Mr. Ajay Kumar Juneja (Respondent No 3) vide email dated 26-03-2021, 02-04-2021 & 05-04-2021 (Annexure-5 of the application) to  share the documents and to hand over the possession of the properties of the Corporate Debtor but till date no information has been provided to the applicant. 

# 4. It is further submitted by the applicant that after an extensive search, the applicant had found a contact of respondent No. 1 i.e., Mr. Virender Dawar and has sent emails dated 26-03-2021, 30-03-2021, 02-04-2021 & 05-04-2021 requesting him to co-operate by sharing the details and locations of assets, documents and information but till date no documents and information has also been shared by Mr Virender Dawar. 

# 5. Notice was served on the respondents, and the affidavit of service in response to the order dated 22.03.2022 has been filed by Diary No. 00573/2 dated 13.04.2022. It is seen in the affidavit of service that the petitioner has made publications in two daily newspapers i.e. Business Standard (English & Hindi) on 15.02.2022. Thus, Respondents No.1 and 2 proceeded against ex-parte by order dated 25.05.2022. 

# 6. The Respondent No.3-Mr. Ajay Kumar Janeja has filed his reply by Diary No.00573/3 dated 20.05.2022 stating that the answering respondent is the bonafide owner of the properties situated at 3/5, 4/5 portion of 5/5 of Jacubpura Gurgaon as he has purchased the property by agreement to sale dated 10.02.2016 (Annexure-R1 of the application). As per the agreement to sale, the respondent paid a total amount of Rs.2,42,00,000/- to the loan account of the corporate debtor on 30.04.2016, 06.5.2016, 09.05.2016 & 20.05.2016. vide RTGS transfers. The actual possession of the property was also delivered to the respondent while executing the agreement to sale dated 10.02.2016. Moreover, the bank has also issued a revised sanction letter (Addendum Letter) bearing No. IBL/BBG/2016-17/223 dated 27.04.2016, after de-mortgaging the concerned property and by revising the sanction of credit facilities i.e. reducing the CC Limit from 1350 Lakhs to 850 Lakhs. The aforementioned revised Sanction Letter dated 27.04.2016 has been attached as Annexure-R2 of the application. The respondent has also filed a suit for specific performance and permanent injunction in the jurisdictional Civil Court situated at Gurugram. Later on, the parties entered into a settlement wherein the suit of the plaintiff (respondent No.3) was decreed in his favour. The copy of the compromise decree in CS/4266/2018 passed by the Civil Judge (Senior Division) Gurugram is attached as Annexure-R3 of the reply. 

# 7. It is also averred by respondent No.3 that after receiving the payment in full and executing the revised addendum letter, the bank had not released the original documents regarding the concerned property. The bank had issued the aforesaid sanction letter after completing all the documentation and the same was signed by the competent authority. Thereafter, the answering respondent filed a suit for mandatory injunction for releasing of the titled documents of the concerned properties and an interim stay by order dated 12.07.2018 (Annexure-R4 of the reply) has also been granted by Civil Court against the IndusInd Bank not to interfere in the peaceful possession. Subsequently, the debt was assigned by IndusInd Bank to M/s CFM Asset Reconstruction Pvt. Ltd. Ms CFM Asset Reconstruction Pvt Ltd. filed a petition u/s 14 of the Securitization & Reconstruction of Financial Assets & Enforcement of Security Interest Act, 2002 (SARFAESI Act) before the Ld. Court of District Magistrate, Gurgaon, Haryana wherein they sought possession of property No. 203/5 (Old No. 174/14) Jacubpura Gurgaon 122001 which is already de-mortgage by IndusInd bank by letter no IBL/BBG/2016-17/223 dated 27.04.2016. 

# 8. It is further contented by Respondent No. 3 that the Insolvency proceedings have been initiated against the corporate debtor on 10.02.2021 and a moratorium under Section 14 was declared by the corporate debtor. The concerned properties are owned by respondent No.3 and the insolvency process has nothing to do with the rights of respondent No.3. Resolution Professional claims that a forensic audit has been done concerning the corporate debtor/firm but he has failed or intentionally didn't detect the high-value transaction of an amount of Rs. 2,22,75,000/- from the respondent No. 3 to the CC limit account of respondent no. 1/corporate debtor of IndusInd bank against the full sale consideration amount concerning the concerned property in 2016. It is submitted that the alleged forensic audit done by the IRP lacks credibility as the forensic audit was done without proper auditing of the bank statements and the completing of the books of accounts/ledgers concerning the Corporate debtor. 

# 9. The applicant has filed a rejoinder by dairy No.00573/4 dated 12.09.2022 stating that the respondent has not brought true, actual and factual facts and the Agreement to sell relied upon by the respondent is a Sham document which has been created later on just to defraud the creditors of the Corporate Debtor. The Respondent No. 3 is not the bonafide purchaser/owner in possession of the properties situated at 3/5, 4/5 portion of 5/5 Jacubpura, Gurgaon as Mrs. Rashmi Dawar wife of Mr. Virender Dawar (Director of the suspended Board), the Respondent Nos. 1 and the Corporate Debtor had in connivance with the Respondent No. 3 entered into an agreement to sell the property. The property for which the agreement to sell was entered into between the parties had been mortgaged to the IndusInd Bank by way of deposit of the title deeds to secure the credit facilities and the property was never de-mortgaged and the documents of the title were never released to the mortgagor i.e. the Respondent No. 1. It is submitted that the request for the reduction of CC Limit was declined by the IndusInd Bank and the aforesaid letter dated 27.04.2016 was withdrawn by the bank by their email dated 10.08.2016. The applicant is alleging the connivance of respondent No.3 with the Directors of the corporate debtor in order to grab the properties and defraud the creditors. The Bank has never given consent to the agreement to sell or the payment of sale consideration directed to the bank account. 

# 10. We have heard the learned counsel for the applicant and perused the material available on record. 

# 11. The issue for consideration before this adjudicating authority is whether IRP/RP can seek possession of the property from Respondent No. 3 in presence of consent decree passed by the Civil Court in favour of Respondent No. 3. 

# 12. From the perusal of the facts narrated above, it is evident that respondent No. 3 had entered into an agreement to sell dated 10.02.2016 with the Suspended Board of Directors and a suit had also been filed by respondent No. 3. Thereafter, a compromise/consent decree was passed by the Civil Judge, Senior Division, Gurugram on 06.07.2018. It is noted from the letter dated 27.04.2016 issued by the IndusInd Bank to the corporate debtors and its guarantor that the concerned property was de-mortgaged by the Bank. The sanction letter dated 27.04.2016 has been addressed to the corporate debtor wherein revised terms and conditions were laid down by the Bank and the same is signed by Mr Siddhant-Relationship Manager on behalf of the Bank along with other guarantors. It can be inferred from the sanction letter that the revised terms and conditions with regard to the mortgage of properties were duly sanctioned by the Bank. It is pleaded by the applicant that the bank had withdrawn the sanction letter by email dated 10.08.2016. However, from the perusal of the aforesaid e-mail (Annexure VIII of the rejoinder), it is seen that the date of the sanction letter is mentioned as 27.06.2016 which casts heavy doubt on the email attached by the applicant. Additionally, a consent decree is also passed by the Civil Court (Senior Division), Gurgaon dated 06.07.2018 which is way before the commencement of insolvency proceedings. It is settled law that a consent decree is as good as contested decree. In this context, a reliance is placed on the judgement of Supreme Court in the matter of “Sneh Gupta Vs. Devi Sarup and Ors'' (2009) 6 SCC 194 wherein it has been held that :- 

• “47. xxxxxx A consent decree, as is well known, is as good as a contested decree. Such a decree must be set aside if it has been passed in violation of law. (Emphasis Supplied) xxxxx” 

# 13. In the present case, no evidence is coming forth to show that if the consent decree is challenged by the Bank or its assignee before the appropriate forum. The present application is filed under Section 19(2) of the Insolvency and Bankruptcy Code, 2016 to pass necessary directions to respondents to cooperate with the IRP which is not maintainable against Respondent No. 3 as this adjudicating authority cannot adjudicate upon the dispute between the parties. 

# 14. It is also seen that respondent No. 1 and 2 have failed to discharge the responsibility under the Code with regard to sharing information with the Resolution Professional. As per Section 19(1) of the Code, the Respondent is under obligation to extend all assistance and cooperation to the RP as required in managing the affairs of the company. By not responding to the notices issued during the present proceedings, the respondents have only lent strength to the contention of the Resolution Professional that such non-compliant behavior is intentional and premeditated. 

# 15. In view of the above discussion, we direct respondent No. 1 and 2, to cooperate and give access to all documents/details as sought by the applicant. They are further directed to assist the applicant-RP in completing the statutory compliances as required to complete the audit. Respondent No. 1 and 2 are further directed to provide pending information required by IRP. All the aforementioned compliances be made within two weeks from the date of this order. In view of the above discussion, respondent No. 1 and 2 are hereby directed to share all the information, documents etc, with the Resolution Professional within 10 days of this order. 

# 16. Consequently, IA No. 295/2021 is partly allowed qua Respondent No. 1 & 2 and dismissed qua Respondent No. 3. Thus, the present application is disposed of, accordingly.

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