NCLT Indore (18.07.2022) in Sajjan Kumar Dokania RP of Divya Jyoti Industries Ltd V/s Gopal Nyati & Ors [IA/102(MP)2021 in TP 241 of 2019, CP(IB) 628 of 2018] held that
We direct the Suspended Management to handover all the documents, assets to the RP and provide assistance as required by the RP within ten days from the date of this order, failing which the RP is at liberty to approach local police on the basis of this order and local police to render all necessary assistance to RP.
Excerpts of the order;
# 1. The instant Interlocutary Application is filed by Mr. Sajjan Kumar Dokania RP of M/s Divya Jyoti Industries Limited, under section 19 of the Insolvency and Bankruptcy Code, 2016 (Code) read with Rule 11 of the NCLT Rules, 2016 seeking necessary directions against the members of the suspended board of management of the corporate debtor on their non-cooperation in providing necessary information and documents that are necessary for carrying out the Corporate Insolvency Resolution Process (CIRP) of the corporate debtor.
# 2. The registered office of the M/s Divya Jyoti Industries Limited, Corporate Debtor is situated in the state of Madhya Pradesh. Therefore, the applicant declares that the subject matter of the application is within the jurisdiction of this Bench.
# 3. An application under section 7 of the Code was filed by Bank of Baroda (earlier Dena Bank) to initiate the CIRP against M/s Divya Jyoti Industries Limited. The Adjudicating Authority vide its order dated 4.12.2020 admitted the application and appointed Mr. Sajjan Kumar Dokania as an interim resolution professional.
# 4. The submissions made by the applicant are summarized hereunder:
(i) The Interim Resolution Professional (IRP) published public announcement in Form-A dated 07.12.2020 as per Regulation 6 of the Insolvency and Bankruptcy Board of India inviting claims from the Creditors of the Corporate Debtor.
(ii) The respondents informed the RP that the company is not having any vehicle and no director of the company has been provided any vehicle at the cost of the company. However, on perusal of records, it was found by RP that the company is having lot of vehicles in their books and therefore, RP requested the respondent through email dated 16.02.2021 and 24.02.2021 to surrender all the vehicles of the company.
(iii) The RP through email dated 22.04.2021 informed the respondents that while taking possession of the company, no cash was handed over to RP except cash at petty cash, however, as per trial balance dated 22.04.2021 of the respondent RP found following cash position in the books:
The RP requested the respondent to hand over the said cash at earliest but not later than 30.04.2021.
(iv) The RP in the 6th CoC meeting held on 11.05.2021 discussed about the non-cooperation and non-surrender of the vehicles by the respondents even after several reminders. However, respondent No. 1 stated that some vehicles were very old, which were allotted to the directors and employees of the company on their termination and therefore, cannot be recovered. Further respondent No. 1 agreed to deposit the proportionate amount of vehicles as реr their book value as on date of initiation of CIRP to which the CoC did not agree and requested to surrender the same.
(v) The applicant also sent a letter on 31.05.2021, asking the respondent about his clarification in respect of various irregularities found in the books of accounts, audited financial statement, and forensic audit report and documents; he also requested to surrender the vehicles; and to deposit the cash held by respondent without any delay
(vi) Despite various reminders the respondent did not handed over the possession of the assets of the corporate debtor and since there is non-cooperation from the respondent, applicant is unable to manage the affairs of the CD. The applicant seeks direction to the local police for assistance in obtaining possession of assets from respondents according to Section 19 of the Code.
# 5. The submissions made by the respondent are summarized hereunder:
(i) The respondent has on behalf of all the suspended directors of the company filed a combined reply to the two applications filed by the RP i.e. IA No. 102 of 2021 and IA No. 124 of 2021 filed under section 19(2) of the Code and u/s 43 and 66 of the Code respectively.
(ii) The employees of the company were allotted the vehicles as per the company policy, after completion of 5 years and as per section 43(4)(a) of the code employees are exempted from the preferential transaction. (iii) As regards petty cash, it is shown as Rs.33.12 lakhs instead of Rs.3.56 lakh for reason not known to the respondent. However, the respondent has paid the said cash to the security personnel for which the payment receipt has already been handed over by the respondent to the RP and for petty cash of Rs 6,735/- it was lying with the cashier and was intimated to the RP.
# 6. We have heard the learned counsel for the applicant as well as learned counsel for the respondent and perused the material available on record. It appears that the Corporate Debtor was admitted into CIRP under section 7 of Insolvency & Bankruptcy Code, 2016 and the applicant has filed the present application due to non-cooperation by the suspended management of the company. However, as per section 19(1) of the Code, the suspended management is under obligation to extend all assistance and cooperation to the RP as required in managing the affairs of the company.
# 7. We direct the Suspended Management to handover all the documents, assets to the RP and provide assistance as required by the RP within ten days from the date of this order, failing which the RP is at liberty to approach local police on the basis of this order and local police to render all necessary assistance to RP.
# 8. In view of the above IA 102/2021 in CP(IB) 628 of 2018 is allowed and disposed off .
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