Bombay High Court
0 vs Pujit Ravikiran ... on 22 April, 2022
Bench: G. S. Kulkarni
Digitally
signed by
PRASHANT
PRASHANT VILAS
VILAS RANE
RANE Date:
2022.04.22
21:52:28
+0530
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION (L) NO. 16 OF 2020
IN
INSOLVENCY PETITION NO. 22 OF 2019
Vardhman Developers Ltd. ... Applicant
in the matter between
Re:
1. Pujit Ravikiran Aggarwal
2. The Official Assignee ... Respondents
AND
NOTICE OF MOTION NO. 16 OF 2021
IN
INSOLVENCY PETITION NO. 21 OF 2019
Ravikiran Aggarwal ...Applicant/Debtor/Insolvent
in the matter between
Ravikiran Aggarwal ... Debtor / Insolvent
And
Vardhman Developers Ltd. & Anr. ... Respondents
AND
NOTICE OF MOTION NO. 17 OF 2021
IN
INSOLVENCY PETITION NO. 21 OF 2019
Vardhaman Developers Ltd. ... Applicant
in the matter between
Re:
Pujit Ravikiran Aggarwal ... Respondent
AND
NOTICE OF MOTION (L.) NO. 15 OF 2020
IN
INSOLVENCY PETITION NO. 21 OF 2019
Vardhman Developers Ltd. ... Applicant
in the matter between
Re:
1. Ravikiran Aggarwal
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2. The Official Assignee ... Respondents
AND
INTERIM APPLICATION NO. 2101 OF 2021
IN
COMMERCIAL EXECUTION APPLICATION NO. 123 OF 2017
Pujit Aggarwal & Anr. ... Applicants
Vs.
Vardhman Developers Ltd. & Anr. ... Respondents
AND
INTERIM APPLICATION (L.) NO. 7213 OF 2020
IN
COMMERCIAL EXECUTION APPLICATION NO. 23 OF 2022
Pujit Aggarwal & Anr. ... Applicants
Vs.
Vardhman Developers Ltd. & Ors. ... Respondents
AND
INTERIM APPLICATION NO. 2102 OF 2021
IN
COMMERCIAL EXECUTION APPLICATION (L.) NO. 1001 OF 2018
Pujit Ravikiran Aggarwal & Anr. ... Applicants
Vs.
Vardhman Developers Ltd. & Ors. ... Respondents
AND
INTERIM APPLICATION NO. 2103 OF 2021
IN
COMMERCIAL EXECUTION APPLICATION (L.) NO. 988 OF 2018
Pujit Ravikiran Aggarwal & Anr. ... Applicants
Vs.
Vardhman Developers Ltd. & Ors. ... Respondents
AND
NOTICE OF MOTION (L.) NO. 10710 OF 2022
IN
INSOLVENCY PETITION NO. 22 OF 2019
ICICI Bank ... Applicant
In the matter of
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Pujit Ravikiran Aggarwal & Anr. ... Debtor
And
The Official Assignee ... Respondent
-----
Mr. Dinyar Madon, Senior Advocate with Ms. Kausar Banatwala, Ms.
Gauri Sakhardanade i/b. Tushar Goradia for the applicant in NML 15 &
16.
Mr. Cyrus Ardeshir with Mr. Karl Tamboly Ms. Kausar Banatwala, Ms.
Gauri Sakhardande i/b. Tushar Goradia for Respondent Vardhman
Developers Ltd.
Mr. Gaurang Mehta. Dikshat Mehra, Ashish Parwani i/b. Rajani
Associates for the respondent.
Ms. Heena Shaikh i/b. M. U. Kini & Co. for Creditor (LIC).
Mr. K.K. Trivedi, Official Assignee present.
Ms. M.P. Kunte, Insolvency Registrar present.
Mr. Subodh Patil, 1st Assistant to Official Assignee present.
Mr.Ketan Trivedi, Official Assignee present.
-----
CORAM : G.S. KULKARNI, J.
DATE : APRIL 22, 2022.
P.C.:
1. Notice of motions in the insolvency proceedings are heard.
2. This Court on 10 August 2020 (G.S.Patel, J.) had heard these
notice of motions on video conferencing when an order came to be
passed by the Court, whereby in paragraph (4) thereof, a statement of
the learned Official Assignee confirming that he had not taken charge of
any of the assets of the insolvents, was noted. The said order reads thus:
"1. Heard through video conferencing.
2. There is a narrow issue of law to be decided in these matters.
The 1 Respondents in each Motion has been adjudicated insolvent
st
under the Presidency Towns Insolvency Act 1909 by an order of 26 th
May 2020 made by SC Gupte J. On account of various factual
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circumstances that I need not set out at length today, the present
Applicants, Vardhaman Developers, claim to have a charge over certain
assets of the two insolvents. The issue, therefore, is whether previous
Consent Terms, orders or undertakings are sufficient to constitute such
a charge over the insolvents' assets; and if so, whether these assets, so
charged, would be excluded from the insolvency proceedings. In other
words, whether these assets would be available exclusively for the
satisfaction of the debt claimed by Vardhaman Developers and kept out
of the reach of the other creditors of the two Insolvents.
3. Mr. Mehta and Mr. Balsara for the insolvents assert that no such
application lies because this very question was considered or must be
deemed to have been considered and rejected by SC Gupte J in his
order of adjudication dated 26th May 2020.
4. Mr. Trivedi, Official Assignee confirms that so far the Official
Assignee has not taken charge of any of the assets of the insolvents.
This is noted.
5. Both insolvents have during the course of late morning today
filed Affidavits in Reply. I have not had a chance to see these nor Mr.
Madon for the Applicant had a chance to respond. He states that a
short Rejoinder Affidavit will be filed by Wednesday, 12th August 2020.
6. List both these matters on 13th August 2020.
7. This order will be digitally signed by the Private Secretary of
this Court. All concerned will act on production by fax or email of a
digitally signed copy of this order."
3. Thereafter, these notice of motions were listed for hearing on 13
August 2020 when this Court (G.S.Patel, J.) passed the following interim
orders keeping open all contentions of the parties. The order reads
thus:-
"1. Heard through video conferencing.
2. For the present, the following ad-interim order will suffice,
leaving all contentions on both sides expressly open:
(a) The Official Assignee Mr. Ketan Trivedi is not to take
charge of any of the assets of either of the two Insolvents until further
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orders of the Court.
(b) I note that the order of insolvency passed by SC Gupte,
J. has not yet been advertised;
(c) The two Insolvents will be at liberty to file detailed
affidavits in opposition confined to the facts without addressing any
issues of law.
3. These affidavits must be filed and served on or before 27 th
August 2020. Affidavit in Rejoinder is to be filed and served on or
before 7th September 2020.
4. I am tentatively listing both the matters for final disposal on
14th September 2020.
5. In the meantime, on instructions Mr. Madon makes a statement
that his clients will not proceed in execution of the decree or in
implementation of any orders that have been passed in the execution
proceedings in any manner whatsoever. I understand this to mean
that there will be no further steps until next date against the two
Insolvents nor against any of their other family members who may
have been the subject matter of previous orders of this Court in
execution or otherwise.
6. This order will be digitally signed by the Private Secretary of
this Court. All concerned will act on production by fax or email of a
digitally signed copy of this order."
(emphasis supplied)
4. Thus, the situation as on date is that the learned Official Assignee
has not taken charge of the assets of either of the two insolvents as
directed by the Court by the above order. Also a statement on behalf of
the applicants was recorded in paragraph (5) of the above order that the
applicants would not proceed in execution of the consent decree passed
in the Commercial Suit No.345 of 2015 or execution of any order passed
in the execution proceedings.
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5. The above ad-interim order has continued to operate till date. It is
on such backdrop, the proceedings are listed today on an application
made on behalf of the applicants that the notice of motions be taken up
for further orders to be passed in regard to the sale of assets of the
insolvents.
6. I have heard learned Mr.Madon, learned Senior Counsel for the
applicants on these notice of motions and Mr.Mehta, learned Counsel for
the insolvents as also Mr.Trivedi, learned Official Assignee who is
present in the Court. It clearly appears that the applicants are
beneficiaries of a consent decree passed by this Court in proceedings in
Commercial Suit No.345 of 2015 which is subject matter of execution
proceedings before the Court. The said consent decree is dated 12 June
2015. Thereafter, there are consent terms which were entered between
the parties in the execution proceedings on 29 September 2016 and 30
October 2018 and extension thereof dated 15 January 2019. Admittedly
as on date there is no stay whatsoever of either the consent decree or
the consent term which were executed between the parties in the
execution proceedings.
7. In such circumstances, Mr.Madon's contention today is that, as
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already respondent No.1 in both these notice of motions are adjudged
insolvents, as also, considering the fact that there are other large
number of creditors who have claims against the insolvent-respondents,
the learned Official Assignee ought to proceed to sell the properties
which are subject matter of the consent decree as also the consent terms
as entered between the parties, by following the procedure as per law.
Mr.Madon submits that after the amounts are realized, let the amounts
be not distributed by the Official Assignee, at which point of time the
applicants can be heard, in respect of their entitlement to receive the
decreetal amounts under the decree and as secured creditors. It is
Mr.Madon's submission that such course of action would also entail to
the benefit of the other creditors who may have claim against the
insolvents, although, the applicants contend that the assets which form
part of the decree in question are secured assets, and therefore, would
fall outside the insolvency proceedings.
8. Mr.Mehta on the other hand would dispute the submissions of
Mr.Madon, however, Mr.Mehta on instructions would submit that in the
given circumstances, the insolvents would not be averse to the
properties of the insolvents be sold by the learned Official Assignee. He
would also state that in so far as the entitlement of the applicants to
receive the amounts is concerned, the same can be adjudicated at the
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hearing of the present notice of motions as also the notice of motions
which are filed by the insolvent / judgment debtor in the execution
proceedings, and in the insolvency proceedings.
9. Thus, there appears to be consensus that the official assignee
ought to proceed to sell the properties of the insolvents. If such course
of action is to be accepted, then the order dated 13 August 2020 passed
by this Court and as noted above, is required to be modified.
Accordingly, the interest of justice would require that the learned official
assignee now be directed to proceed to sell the properties of the
insolvent. It is pointed out at the bar that in pursuance of the orders
passed in the suit, the Court Receiver, High Court, Bombay was
appointed as a Receiver in respect of such properties of the insolvents, as
also the original documents in relation to the properties are also with
the Court Receiver. If that be the case, the Court Receiver would also be
required to be directed to take such further appropriate steps to enable
the Official Assignee to sell the properties in question.
10. It may also be noted that the execution proceedings are listed
before this Court today alongwith these proceedings and as noted above
there are also notice of motions filed in the execution proceedings.
11. In the above circumstances, the following ad-interim order is
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passed on these notice of motions:-
ORDER
(I) Let the insolvents make declaration of their assets and liabilities
with the learned Official Assignee within a period of three weeks from
today. There shall not be a further extension of such period for any
reason.
(II) The learned Official Assignee is directed to take steps by following
the procedure as per law to sell the movable and immovable properties
of the insolvents.
(III) The Court Receiver, High Court, Bombay, shall provide all
necessary assistance and shall take all such necessary steps as may be
required by the learned Official Assignee to sell the properties of the
insolvents.
(IV) After the properties are sold and the monies are realised, the
learned Official Assignee shall make a report to this Court so that further
appropriate orders can be passed on these notice of motions.
(V) Awaiting the report of the learned Official Assignee, let the
hearing of these notice of motions be adjourned to 29 July 2022.
(VI) It is clarified that after the amounts are realised from the sale of
the movable and immovable properties, the applicants would be heard
on their respective rights and contentions. The sale of movable and
immovable properties of the insolvents, shall in no manner affect the
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decreetal interest and rights of the applicants to claim appropriate
amounts under the consent decree. All contentions of the parties in that
regard are kept open.
(VII) The insolvents are directed to render all co-operation failing
which the learned Official Assignee is permitted to make a report to this
Court so that further appropriate orders can be passed including to
secure their presence in a manner known to law.
11. Permission to file rejoinder.
[G.S. KULKARNI, J.]
