SANDEEP KHAITAN, RESOLUTION PROFESSIONAL FOR NATIONAL PLYWOOD INDUSTRIES LTD. versus JSVM PLYWOOD INDUSTRIES LTD. & ANR.

Citation: [2021] 4 S.C.R. 122 · Decided: 22-04-2021 · Supreme Court of India · Bench: UDAY UMESH LALIT · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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SUPREME COURT REPORTS
[2021] 4 S.C.R.
   [2021] 4 S.C.R. 122
122
SANDEEP KHAITAN, RESOLUTION PROFESSIONAL FOR
NATIONAL PLYWOOD INDUSTRIES LTD.
VERSUS
JSVM PLYWOOD INDUSTRIES LTD. & Anr.
(Criminal Appeal No.447 of 2021)
APRIL 22, 2021
[UDAY UMESH LALIT AND K. M. JOSEPH, JJ]
Insolvency and Bankruptcy Code, 2016: ss. 14, 17 and 7 –
Code of Criminal Procedure, 1973 – s. 482 – Power of High Court
u/s. 482, if can override statutory provisions of IBC – On facts,
NCLT admitted application u/s. 7 IBC against one NPIL and
subsequently appellant was appointed as Resolution Professional
– Appellant alleging that the respondent-operational creditor,
transferred Rs 32.50 lakhs from the Corporate Debtor’s bank
account without the appellant’s sanction in violation of s. 14 –
Appellant then filed an FIR against the respondent – Respondent
filing petition u/s.482 before the High Court – Respondent also
filed an application for allowing it to use its bank account over
which lien had been created and the frozen accounts of its creditors
– High Court lifted the lien created on the respondent’s bank account,
and allowed the respondent to operate the bank account over which
lien had been created and the accounts of its creditors frozen in
connection with the FIR – On appeal, held: Power u/s. 482 may not
be available to the court to countenance the breach of a statuary
provision – Words ‘to secure the ends of justice’ in s. 482 cannot
mean to overlook the undermining of a statutory dictate, provisions
of ss. 14 and 17 of the IBC – High Court overlooked the salutary
limits on its power u/s. 482 – Order of the High Court resulting in
the respondent No. 1 being allowed to operate the account without
making good the amount of Rs 32.50 lakhs to be placed in the
account of the Corporate Debtor, cannot be sustained – Respondent
No.1 is allowed to operate its account subject to first remitting Rs
32.50 lakhs into the account of the Corporate Debtor.
Allowing the appeal, the Court
HELD: 1.1 In this case an application filed under section 7
of the Insolvency and Bankruptcy Code, 2016 was admitted, the
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appellant was appointed as the interim resolution professional
and a moratorium was declared. With the declaration of the
moratorium the prohibitions as enacted in section 14 came into
force. It is clear that the assets of the company would include the
amounts lying to the credit in the bank accounts. There cannot
be any dispute that well after the order under section 14 was
passed, a sum of Rs. 32.50 lakhs has been remitted into the
account of Respondent No.1 company. No doubt it is the definite
case of the Respondent No.1 that it has had business relations
with the Corporate Debtor since more than 15 years and that the
amount remitted in its account represented the price of the
materials supplied to the Corporate Debtor. Apart from this
amount a sum of rupees more than Rs.39 lakhs is still due. It is
to be noticed that though an appeal was filed against the order
admitting the petition under Section 7 the same was dismissed
by the NCLAT. The appellate order was undoubtedly set aside
by this court and the appeal remanded to the NCLT for its
consideration. Setting aside the appellate order of the NCLAT
by this Court and remanding the appeal would not have the effect
of setting aside the order admitting the application. Initially, an
order was passed on 28.02.2020. The ambiguity created by the
said order was removed by the subsequent order of the Tribunal
dated 20.03.2020. In other words, by the order dated 20.03.2020
the NCLT ordered that the appellant was at liberty to act as per
law and the words used in the earlier order dated 28.02.2020
relied upon by the Respondent No.1 were found to be a mere
casual observation which did not culminate into any direction.
Furthermore, there is an FIR and which is pending consideration
in the High Court also. The appellant is essentially aggrieved by
the transactions representing a sum of Rs. 32.50 lakhs all of which
took place after order dated 20.03.2020. [Para 16][133-A-G]
1.2 In the interim order passed by the NCLT Guwahati,
the Tribunal had directed the Directors to refund the amount of
the Corporate Debtor less any amount paid for supplies. It is
also true that the review petition filed by the Appellant is
dismissed, essentially based on the limitations on the power of
review. [Para 17][133-G-H]
SANDEEP KHAITAN, RESOLUTION PROFESSIONAL FOR NATIONAL PLYWOOD
INDUSTRIES LT

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