IN THE NATIONAL COMPANY LAW TRIBUNAL, NEW DELHI
COURT-V
Item No.-101
(IB)-755(PB)/2018
IA-4083/2020
IN THE MATTER OF:
S.C.S.L. Buildwell Pvt Ltd ….Applicant
Vs.
Palo Infrastructure & Developers Pvt. Ltd. …..Respondent
SECTION
U/s 7 of (IBC) CIRP Order delivered on 28.07.2023
CORAM:
SHRI MAHENDRA KHANDELWAL,
HON’BLE MEMBER (JUDICIAL)
SHRI RAHUL BHATNAGAR,
HON’BLE MEMBER (TECHNICAL)
PRESENT:
For the Applicant :
For the Respondent :
ORDER
Order pronounced in open Court vide separate sheets. IA- 4083/2020
in (IB)- 755(PB)/2018 is disposed off.
Sd/- Sd/-
(RAHUL BHATNAGAR) (MAHENDRA KHANDELWAL)
MEMBER (T) MEMBER (J)
THE NATIONAL COMPANY LAW TRIBUNAL
COURT V, NEW DELHI
I.A No. 4083/2020
IN
Company Petition No. (IB) – 755/(PB)/2018
Under Section 60(5) of the Insolvency and Bankruptcy
Code, 2016 read with Rule 11 of NCLT Rules, 2016.
IN THE MATTER OF:
S.C.S.L BUILDWELL PRIVATE LIMITED
…. FINANCIAL CREDITOR
VERSUS
PAL INNFRASTRUCTURE AND DEVELOPERS PRIVATE LIMITED
…. CORPORATE DEBTOR
AND IN THE MATTER OF-
GANGA RAM AGARWAL
RESOLUTION PROFESSIONAL
.... APPLICANT
VERSUS
STATE BANK OF INDIA & ORS.
…. RESPONDENT (S)
Order Pronounced on: 28.07.2023
1
IA-4083 of 2020
IN
CP(IB) No. 755/PB/2018
Order Delivered On: 28.07.2023
MEMO OF PARTIES
1. Ganga Ram Agarwal
Resolution Professional
Partner, AAA Insolvency Professional LLP
E-10A, Kailash Colony, G.K-1
New Delhi – 110048 Applicant
Vs.
1. State Bank of India
Pankha Road
Janakpuri, Delhi- 110058 Respondent No. 1
2. Kotak Mahindra Bank
Level 6, JMD Regent Square,
Mehrauli- Gurgaon Road,
DLF Phase-2, Sector- 25
Gurugram Haryana – 122002 Respondent No. 2
3. Economic Offences Wing
Office of Joint Commissioner of Police
Mandir Marg Complex
Mandir Marg, Near Gole Market,
Delhi- 110001 Respondent No. 3
4. Income Tax Officer
TDS Circle, Ward- 3(2), 2nd Floor
HSIIDC Building, Near Shankar Chowk
N. H. 8, Udyog VIhar,
Phase- V, Gargaon Respondent No. 4
CORAM:
SHRI MAHENDRA KHANDELWAL, HON’BLE MEMBER (JUDICIAL)
SHRI RAHUL BHATNAGAR, HON’BLE MEMBER (TECHNICAL)
2
IA-4083 of 2020
IN
CP(IB) No. 755/PB/2018
Order Delivered On: 28.07.2023
APPEARANCES:
For the Applicant :
For the RP : Mr. Ganga Ram Agarwal, RP with Mr. Abhishek
Anand, Mr. Aditya Gauri, Mr. Amar Vivek, Ms.
Damini Srestha, Advs.
ORDER
PER: SHRI RAHUL BHATNAGAR, HON’BLE MEMBER (TECHNICAL)
1. This application has been filed under Section 60(5) of the Insolvency and Bankruptcy
Code, 2016 read with Rule 11 of the National Company Law Tribunal Rules, 2016 on
behalf of the Resolution Professional of Pal Infrastructure and Developers Private
Limited seeking appropriate direction for de-freezing of the bank accounts and the
Fixed deposits lying with the banks.
2. The applicant in the present application has prayed for the following reliefs: -
a) Allow the present application
b) Pass and order for de-freezing the below mentioned bank accounts and fixed
deposits-
3
IA-4083 of 2020
IN
CP(IB) No. 755/PB/2018
Order Delivered On: 28.07.2023
4
IA-4083 of 2020
IN
CP(IB) No. 755/PB/2018
Order Delivered On: 28.07.2023
c) Pass any order (s) which this Hon’ble Tribunal may deem fit and proper
in the ends of justice.
3. Briefly stated the facts of the case as mentioned in the instant application, which are
just and necessary for adjudication, are as follows: -
i. That, the present Application is being filed by Mr. Ganga Ram Agarwal, Resolution
Professional (“Applicant/RP”) of M/s Pal Infrastructure and Developers Private
Limited (“Corporate Debtor”) seeking direction of this Hon’ble Tribunal under
Section 60 (5) of the Insolvency and Bankruptcy Code, 2016 read with National
Company Law Tribunal Rules, 2016 for de-freezing of the above mentioned bank
accounts and the fixed deposits lying with the said banks.
ii. That the Corporate Debtor is a company duly incorporated under the Companies
Act, 1956, having its registered office at B-45, Shakti Apartments, Sector 9, Rohini,
New Delhi and corporate office at Pal Tower, IIIrd Floor, M G Road, Sikenderpur,
Gurgaon-122002. The Corporate Debtor is in the business of township
development in India.
iii. That an application under section 7 of the Insolvency and Bankruptcy Code, 2016
("Code") was filed by the Financial creditor namely, S.C.S.L Buildwell Private
Limited. The said application was allowed and the CIRP of the Corporate Debtor
was initiated vide order dated 05.09.2019 of this Hon'ble Tribunal. Vide the same
order Mr. Dilip Kumar Niranjan was appointed as Interim Resolution Professional
("IRP"). Copy of the order dated 05.09.2019 is on record.
iv. That the applicant was appointed as Resolution Professional by an order of this
Tribunal dated 26.06.2020 to conduct the CIRP of the Corporate Debtor. Copy of
order of this Tribunal dated 26.06,2020 appointing RP is on record. That section
17 & 18 read with section 23 & 25 of the Code casts a duty upon the applicant/RP
5
IA-4083 of 2020
IN
CP(IB) No. 755/PB/2018
Order Delivered On: 28.07.2023
to conduct the entire CIRP and manage the operations of the Corporate Debtor
during the CIRP. That Section 20(1) of the Code mandates and requires the IRP/RP
to make every endeavour to protect and preserve the value of property of the
Corporate Debtor and manage its operation as a going concern.
v. That in order to enable the IRP/RP to manage the operations of the Corporate
Debtor as a going concern, the code inter alia mandates and confers under section
17(1)(d), that the Financial Institutions maintaining the accounts of the Corporate
Debtor shall act on the instructions of the IRP/RP to such accounts. Section
17(1)(d) of the Code is reproduced for ready reference-
“………(d) the financial institutions maintaining accounts of the corporate
debtor shall act on the instructions of the interim resolution professional
in relation to such accounts and furnish all information relating to the
corporate debtor available with them to the interim resolution
professional......."
vi. That it is pertinent to mention that the Corporate Debtor is maintaining several
bank accounts and several fixed deposit with banks namely, State Bank. of India
Pankha Road, Janakpuri branch, New Delhi and Kotak Mahindra Bank JMD
Regent Arcade, Gurgaon.
vii. That Respondent no. 1 & Respondent no. 2 are the banks wherein the Corporate
Debtor has been maintaining its bank accounts. Respondent no. 3 and Respondent
no. 4 are the Economic Offence Wing (EOW) and Income Tax Officer respectively,
on whose order the accounts of the Corporate Debtor was frozen by the Respondent
no. 1 and Respondent no. 2 herein. That pursuant to his appointment the Applicant
learnt that a complaint has been lodged with EOW PS Mandir Marg, New Delhi
(Respondent No. 3). The EoW has filed an FIR 179/11 on 19.09.2011 based on the
said complaint under the sections 420/ 120B/ 406/ 409 IPC. That the applicant
further learnt that the above mentioned Respondent Banks on the instruction of
Investigating Officer of EoW and Income Tax Officer have put a debit freeze on the
above mentioned bank accounts of the Corporate Debtor.
6
IA-4083 of 2020
IN
CP(IB) No. 755/PB/2018
Order Delivered On: 28.07.2023
viii. That pursuant to his appointment the Applicant vide letter dated 23.07.2020
intimated the Respondent no. 2 Bank and vide letter dated 06.08.2020 intimated
the Respondent no. 1, about the initiation of CIRP and declaration of moratorium
u/s 14 of the Code. Further in the said letter the Applicant requested the banks to
make the RP as the authorised signatory in the bank account of the Corporate
Debtor as per section. 17 of the Code. The Respondent no. 1 vide email dated
06.08.2020 informed the applicant that they are searching the documents based
on which debit freeze is imposed on the accounts of the Corporate Debtor.
ix. That the Applicant in order to get more information regarding the said freezing of
accounts on the instruction of the EoW and Income Tax, sent letters/ emails dated
11.09.2020 to the above banks and requested to de-freeze the accounts of the
Corporate Debtor. The Respondent no. 2, Kotak Mahindra Bank vide its email dated
15.09.2020 replied to the email dated 11.09.2020 sent by the Applicant, whereas
Respondent no. 2 advised the Applicant to obtain an order from Respondent no. 3
& Respondent no 4 revoking the order of debit freeze on the accounts of the
Corporate Debtor. It is pertinent to mention that the Respondent no. 1 has not
replied to the email dated 11.09.2020 till date. Copy of emails dated 11.09.2020
sent to banks and email dated 15.09.2020 sent by respondent no. 2 to applicant is
on record.
x. That the Applicant has sent a letter dated 11.09.2020 to EoW intimating them
about the initiation of CIRP and declaring of Moratorium. In the letter the Applicant
also requested the EoW to de-freeze the accounts of the Corporate Debtor for the
conduct of CIRP. However, till date no response has been received from EoW in this
regard. Copy of the letter dated 11.09.2020 is annexed and marked as Annexure
A-7. That it is pertinent to mention that there is substantial amount lying in above
mentioned bank accounts and in Fixed Deposits, which have been frozen and the
same can be utilized for the smooth conduct of CIRP. That it is further pertinent to
mention that this Hon'ble Tribunal has declared moratorium vide order dated
05.09.2019 and during moratorium certain activities are prohibited.
7
IA-4083 of 2020
IN
CP(IB) No. 755/PB/2018
Order Delivered On: 28.07.2023
xi. That it is pertinent to mention that as per section 18 of the Code, it is the duty of
the Resolution Professional to take control and custody of any asset over which the
Corporate Debtor has ownership even if those assets may or may not be in
possession of the Corporate Debtor.
xii. Therefore, in order to protect the assets of the Corporate Debtor and fulfil duties
under the Code, the Applicant was constrained to file the present application before
this Tribunal for de-freezing of the abovementioned two accounts of the Corporate
Debtor. That the Tribunal has jurisdiction to adjudicate upon the said matter and
de-freeze the accounts for operation of the application for the conduct of CIRP. The
present application is bona fide and in the interest of justice.
4. We have gone through documents on record filed by the Applicant and arguments
advanced by counsel for the Applicant. Despite repeated notice, no one appeared on
behalf of the Respondents No. 1 to 4 nor filed their reply. Taking into account this
fact Respondent Nos. 1 to 4 were set as exparte vide order dated 08.05.2023.
5. In the present case, it is observed that there are some outstanding dues of the Income
Tax Department, and a complaint has been lodged with the Economic Office Wing,
for which EoW and Income Tax Department had ordered to freeze the accounts of the
Corporate Debtor. Further, it is pertinent to mention that as per section 18 of the
Code, it is the duty of the Resolution Professional to take control and custody of any
asset over which the Corporate Debtor has ownership even if those assets may or may
not be in possession of the Corporate Debtor.
6. It is pertinent to refer to section 14 of the Code which reads as under: -
14. Moratorium. - (1) Subject to provisions of sub-sections (2) and (3), on the
insolvency commencement date, the Adjudicating Authority shall by order
declare moratorium for prohibiting all of the following, namely: -
(a) the institution of suits or continuation of pending suits or proceedings against
the corporate debtor including execution of any judgement, decree or order in
any court of law, tribunal, arbitration panel or other authority;
8
IA-4083 of 2020
IN
CP(IB) No. 755/PB/2018
Order Delivered On: 28.07.2023
(b)transferring, encumbering, alienating or disposing off by the corporate debtor
any of its assets or any legal right or beneficial interest therein;
(c) any action to foreclose, recover or enforce any security interest created by the
corporate debtor in respect of its property including any action under the
Securitisation and Reconstruction of Financial Assets and Enforcement of
Security Interest Act, 2002 (54 of 2002);
(d)the recovery of any property by an owner or lessor where such property is
occupied by or in the possession of the corporate debtor.
7. Further, provisions under Section 238 of the I &B Code have overriding effect over all
other law. For the sake of reference, the same is extracted below:
"Section 238: "Provision of this code to override other Laws- The Provisions of
this code shall have effect, notwithstanding anything inconsistent therewith
contained in any other law for time being in force or any instrument having effect
by virtue of any such law."
8. Further, in the matter of Rajender Kumar Saxena V. Earth Gratia Buildcon Private
Limited, the Hon'ble Tribunal, Principle Bench, New Delhi has held -
“..Having heard the learned counsel for the RP, we are of the considered
view that the bank account which have been frozen on the directions issued by
EoW, Delhi Police on behalf of various FIRs referred above are required to be
defrozed so as to enable the RP to conduct the CIR Process by utilizing the funds
deposited therein. Accordingly, we direct the Yes Bank, _Indian Bank, Axis
Bank, and Corporation Bank to defreeze the accounts of the Corporate Debtor
and also direct the EoW, Delhi police not to insist on the freezing of accounts as
the CIR Process is required to be conducted in accordance with provisions of
Code. Moreover, moratorium under section 14 is operation and section 238
excludes, the jurisdiction of all other statutory bodies. Reliance is placed on the
judgment of the Hon'ble Supreme Court rendered in the case of Principal
commissioner of Income Tax Vs. Monnet Ispat and Energy Ltd. (Special Leave to
Appeal (C) No. 6483/2018 decided on 10.08.2018)".
9
IA-4083 of 2020
IN
CP(IB) No. 755/PB/2018
Order Delivered On: 28.07.2023
9. Accordingly, in light of the above observations, the above Banks i.e. SBI, Pankha
Road, New Delhi and Kotak Mahindra Bank, JMD, Regent Arcade, Gurgaon are
directed to de-freeze the accounts of the Corporate Debtor, the details of which
are mentioned in the application, as the CIR Process is required to be conducted
in accordance with the provisions of the Code. Accordingly, IA 4083 of 2020
stands accordingly disposed off.
Let a copy of the order be served to the parties.
Sd/- Sd/-
(RAHUL BHATNAGAR) (MAHENDRA KHANDELWAL)
MEMBER (TECHNICAL) MEMBER (JUDICIAL)
10
IA-4083 of 2020
IN
CP(IB) No. 755/PB/2018
Order Delivered On: 28.07.2023
IN THE NATIONAL COMPANY LAW TRIBUNAL, NEW DELHI
COURT-V
Item No.-501
(IB)-755(PB)/2018
CA-1356/2020, IA-3068/2020, IA-2633/2020, IA-5134/2020, IA-4620/2020,
IA-5233/2020, IA-5473/2020, IA-5285/2020, IA-5144/2020, Ivn. P-14/2020,
IA-2729/2021, IA-272/2021, IA-3248/2021, IA-4391/2021, IA-4809/2021, IA-
926/2022, IA-2264/2022, Ivn.P-22/2022, IA-2733/2022, IA-4137/2022, IA-
3117/2022, Ivn.P-31/2022, Ivn .P -03/2023
IN THE MATTER OF:
S.C.S.L. Buildwell Pvt Ltd ….Applicant
Vs.
Palo Infrastructure & Developers Pvt Ltd …..Respondent
SECTION
U/s 7 of (IBC) CIRP Order delivered on 28.07.2023
CORAM:
SHRI MAHENDRA KHANDELWAL,
HON’BLE MEMBER (JUDICIAL)
SHRI RAHUL BHATNAGAR,
HON’BLE MEMBER (TECHNICAL)
PRESENT:
For the Applicant : Adv Venket Rao, Adv Ankita, Adv Gunjan Kumar
in IA-2733/22
For the Respondent : Mr. Aditya Madan, Ms. Aishwarya Adlokha in IA-
272/21, Mr. Ashish Mohan, Mr. Nitesh Jain, Mr.
Agarwal, Ms. Shankari Mishra, in IA-5134/20,
Mr. Krishnendu Datta Sr Adv, Mr. Abhijeet Sinha
Adv, Mr. Parag Maini Adv, Raghav Chaddha and
Palash S Singhai Advocates in I.A. No.5473 in 2020
For the RP : Adv Abhishek Anand, Adv Aditya Gauri, Adv Amar
Vivek, Adv Damini
ORDER
IA-5285/2020, Ivn. P-14/2020:-
Ld. Counsel for the Applicant submitted that the arguing Counsel is
suffering from eye flu. Therefore, could not argue the matter and sought an
Khushboo
28.07.2023
adjournment. Ld. Counsel for the RP is also present. In view of the request
made by Counsel for the Applicant, list the matter on 01.08.2023.
IA-3248/2021:-
This is an application filed by the RP seeking urgent hearing of IA-
5285/2020. The said IA is listed for hearing today. Therefore, the present IA
has now become infructuous. Accordingly, the same is dismissed being
infructuous.
All other IAs be listed on 01.08.2023. However, following IAs i.e. IA-
5233/2020, IA-5285/2020, Ivn. P-14/2020, IA-272/2021, IA-3117/2022 will
be heard first.
Sd/- Sd/-
(RAHUL BHATNAGAR) (MAHENDRA KHANDELWAL)
MEMBER (T) MEMBER (J)
Khushboo
28.07.2023
