ICICI BANK LIMITED vs DIVYANSHU BAWEJA on 30 December 2020

1. 1. Registration No. HR-38T-1603

2. 2. Registration No. HR-38T-1625

3. 3. Registration No. HR-38T-1628

4. 4. Registration No. HR-38T-1624

5. 5. Registration No. HR-38S-3030

6. 6. Registration No. HR-38T-1621

7. 7. Registration No. HR-38T-1618

8. 8. Registration No. HR-38T-1622

9. 9. Registration No. HR-38T-1602

10. 10. Registration No. HR-38T-1607

11. 11. Registration No. HR-38S-3031

12. 12. Registration No. HR-38S-3035

13. 13. Registration No. HR-38T-1606

14. 14. Registration No. HR-38T-1605

15. 15. Registration No. HR-38T-1620

16. 16. Registration No. HR-38T-1604

17. 17. Registration No. HR-38S-3032

18. 18. Registration No. HR-38T-1619

19. 19. Registration No. HR-38T-1623

20. 20. Registration No. HR-38T-1626

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Details obtained from E-Registry of Vehicles maintained by Ministry of Road Transport and Highways as on 15.02.2020 providing the details of ownership of these vehicles (Annexure T-3) is attached with the IA.

3. Further, it is submitted that the aforesaid twenty vehicles mentioned in the Recovery Order and in the final order are not the property or asset of the defendant, rather they are the assets of the company till date and the recovery order and the final order does not take into account the ownership of the twenty vehicles and that the applicant bank did not have any security/charge over the said vehicles and in the absence of any charge of the applicant bank over the said twenty vehicles, the proceedings initiated by the applicant bank for recovery of the said vehicles is null and void-ab-initio. Further, it is submitted that the Company is under insolvency resolution process before the National Company Law Tribunal, Principal Bench at New Delhi and the NCLT has admitted an application filed under Section 7 of the Insolvency and Bankruptcy Code, 2016 vide its Order dated 24.09.2019 and the NCLT vide order dated 29.11.2019 appointed Mr. Rocky Ravinder Gupta as the Interim Resolution professional (IRP) and declared moratorium under Section 14 of the Code. It is further stated that the NCLT vide order dated 29.11.2019 appointed Mr. Rajaraman Balachander as the Resolution Professional (RP) of the company. Hence, the aforesaid twenty vehicles are not the personal assets of the defendant named in the OA but the same are the assets of the Sd- ✓ 20/1/20

Company, the control of which is with the Resolution Professional. Further, it is also submitted that in the present case, the third party is a necessary party as the twenty vehicles mentioned above are owned by the Company and the applicant bank has no right over the same and no recovery can be made without impleadment of the Company as the necessary and proper party in the OAs.

4. The applicant bank filed its reply to the said Misc. application contending that the present application filed by the third party seeking impleadment as a necessary party to the present proceedings deserves to be dismissed as being not maintainable and the applicant bank has no privity of contract in the present matter with the applicant in MA i.e. Delhi Baroda Road Carrier Pvt. Ltd. (DBRCL). It is submitted that the defendant approached to the applicant bank in the month of September, 2017 for availing a loan of Rs.2,72,37,004/- for purchase of 20 used vehicles and requested the amount to be released to his account to enable him for purchase of the vehicles from DBRCL. He also undertook to get the hypothecation vehicles on the 20 used vehicles as detailed in the letter/undertaking dated 25.09.2017 and on the basis of the request and the document furnished by the defendant, the applicant bank disbursed the loan of Rs.2,72,37,004/- in the account of the defendant who further passed on the money to the seller of the vehicles. In terms of the letter/undertaking dated 25.09.2017, the said vehicles are the security under

the loan agreement dated 25.09.2017. Thereafter, there was default in repayment of the loan and the applicant bank in terms of the loan document and letter of undertaking and also as per law filed the present OA before this Tribunal and on the basis of the merit of the matter, this Tribunal had passed an order dated 23.02.2019 for appointing the Officer of the bank as Receiver for taking possession of the vehicles purchased under the agreement-in-question. Further, it is submitted that the lis pending before this Hon'ble Court is a lis between the applicant and its borrower and the applicant who has no privity of contract under the present agreement with the applicant bank cannot be impleaded as a party to the present application. The original application has already been decreed against the defendant and the Recovery Certificate has also been issued vide Final Order dated 05.08.2019 and now present applicant cannot file an application for impleadment and set aside of the Recovery Certificate. The applicant in MA and the defendant after colluding with each other cannot put forward the applicant i.e. DBRCL to file the present application seeking impleadment and also seek for stay of operation of the order appointing Receiver and very cleverly the defendant till date has not entered appearance and also when contacted refused to cooperate to disclose the location of the assets against which the order dated 23.02.2019 is in existence. Therefore, the applicant company i.e. DBRCL is not a necessary and proper party for the present proceedings and the present application filed by the Sd

applicant in MA merits to be dismissed with exemplary costs and in case they are in possession of the vehicles they be directed to handover the possession of the vehicles in compliance of the order dated 23.02.2019 passed by this Tribunal.

5. The applicant in MA i.e. DBRCL has filed its rejoinder merely alleging that as provided under Section 25 of the Code, it is duty of the RP of DBRCL to take custody and control of all the assets of DBRCL and to preserve and protect them and as per the provision of Section 238 of the Code as under:- *"238. Provisions 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 the time being in force or any instrument having effect by virtue of any such law."*

The subject vehicles are the assets of DBRCL is reflected in the Registration Certificate of the subject vehicles and it is noted that the said fact has also not been denied by the applicant bank and thus, there is an admission that these assets belong to DBRCL. Further, there is no lender-debtor relationship between DBRCL and the applicant bank and no security for any loans taken by the defendant. Further, the defendant had no rights over the assets of DBRCL and he could not have created any security interest on them and any such creation of security interest by the defendant herein on the subject vehicles belonging to DBRCL is thus void ab initio. Therefore, the applicant bank has no right or interest over the assets of DBRCL which are sd [Signature]

the subject matter of the OA. further, it is alleging that after filing the present MA, the applicant bank has submitted its claim in Form C (proof of Claim by Financial Creditors) under Regulation 8 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016, with the RP on 22.02.2020. It is further submitted that against S.No.8 'Details of any security held, the value of the security and the date it was given', the applicant bank has simply stated hypothecation of asset, without mentioning any details as required and by an email dated 24.02.2020, the RP replied to the applicant bank that the Form C filed by it is in the name of the defendant herein and not in the name of the DBRCL. The RP also requested the applicant bank to make necessary amendments to the Form C to enable the RP to start the verification process, but the applicant bank has not done the same till date. It is also stated that the applicant bank does not have any claim against DBRCPL, including the assets owned by DBRCPL. As the Form C filed by the applicant bank with the RP has been rejected by the RP and the bank has not challenged the said decision of the RP, the rejection of the claim of the applicant bank has attained finality and any claim of the applicant bank against the assets of DBRCPL does not survive, however, the applicant bank continued to pursue its alleged claim against the assets of DBRCPL. Further, it is stated that the said actions by the applicant bank are also in violation of Section 14(1) of the Code.

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Accordingly, it has been prayed to allow the present MA.

6. One more application i.e. MA No. 90/2020 has also been filed on behalf of DBRCL, through its Resolution Professional, praying therein to recall/modify the order dated 23.02.2019, the Final Order dated 05.08.2019 and the Recovery Certificate issued in terms of the Final Order dated 05.08.2019, passed by this Tribunal in OA No. 228/2019 to the extent of deleting the vehicles listed in Para 5 of this IA. The facts of this MA are similar to MA No. 91/2020.

7. Further, one more application i.e. IA No. 482/2020 is also filed on behalf of DBRC wherein it has been prayed to stay the operation of Order dated 25.02.2019, Final Order dated 05.08.2019 and the RC issued in terms of the Final Order dated 05.08.2019, to the extent they are applicable to the twenty.

8. Heard and the record has been thoroughly perused.

9. In the present matter, MA No. 91/2020 has been filed for impleadment of DBRCL in the disposed off matter i.e. OA No. 228/2019 decided on 05.08.2019. It is settled preposition of law that whenever final order has been passed, no such impleadment, by virtue of MA no. 91/2020, under Order 1 Rule 10 of CPC can be entertained, therefore, MA No. 91/2020 is not at all maintainable, accordingly, same stands dismissed.

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10. At the same juncture, one another MA i.e. MA No. 90/2020 was filed by DBRCL to recall/modify the order dated 23.02.2019, the Final Order dated 05.08.2019 and the Recovery Certificate issued in terms of the Final Order dated 05.08.2019, passed by this Tribunal in OA No. 228/2019 to the extent of deleting the vehicles listed in Para 5 of this IA. This Tribunal is of the view that once the order dated 23.02.2019 has attained finality and the Final Order dated 05.08.2019 has also been passed but no such application was in existence before Ld. NCLT on the said dates as the Ld. NCLT has admitted the application under Section 7 of the Insolvency and Bankruptcy Code, 2019 vide its Order dated 24.09.2019 i.e. after passing of Final Order dated 05.08.2019 and when the Recovery Certificate was also sent to Ld. Recovery Officer, therefore, by way of present MA, no such injunction order can be passed in favour of present Resolution Professional who is claiming that the Ld. NCLT has appointed him as Resolution Professional (RP) stating that RP is the custodian of the vehicles-in-question. Once the Final Order has been passed against the defendant in OA, against whom, the RC is pending before Ld. Recovery Officer, and the role of RP comes afterwards, who was not in existence at the time of passing of Final Order dated 05.08.2019, thus, the applicant in MA is not entitled for any interim relief claimed by way of recalling/modifying the order or staying the proceedings before the Ld. Recovery Officer, thus, no such stay/recall order can be passed at this stage.

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Accordingly, both the MAs i.e. MA Nos. 91/2020 as well as MA No. 90/2020 and IA No. 484/2020 stand dismissed. However, RP may raise the objections before Ld. Recovery Officer, in accordance with law.

Files be consigned to records.

Ld. Registrar / Asst. Registrar shall communicate the order to the Ld. Counsels for the parties telephonically.

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(DHARMINDER SINGH) PRESIDING OFFICER DRT-III, DELHI