TaxTMI 
TaxTMI 
TaxTMI 
2025 (7) TMI 1781
X X X X Extracts X X X X
X X X X Extracts X X X X
....a, Senior Advocate For Mr. Prateek Kumar, Ms. Raveena Rai, Ms Moha Paranjpe, Mr Siddhant Grover, Advocates for R4 Mr. Abhinav Vasisht, Senior Advocate For Mr. Savar Mahajan, Ms. Arveena Sharma, Ms. Ichchha Kalash, Ms. Samridhi Shrimali, Ms. Lakshana Viravalli, Ms. S.Madhusmitha & Ms. Akshita Sachdeva Jaitly, Advocates for R5 JUDGMENT Per: Justice Rakesh Kumar Jain: This order shall dispose of two appeals bearing CA (AT) (Ins) No. 89 of 2025 titled as "Riju Ravindran Vs. Pankaj Srivastava & Ors." (herein after referred to as 'the first appeal') and CA (AT) (Ins) No. 130 of 2025 titled as "Board of Control For Cricket In India Vs. Pankaj Srivastava & Ors." (herein after referred to as 'the second appeal') as both the appeals have been filed against the order dated 10.02.2025 passed by the National Company Law Tribunal, Bengaluru Bench, Bengaluru (in short 'the Tribunal') by which an application bearing I.A No. 837 of 2024 filed by Pankaj Srivastava (RP)/Respondent No. 1 in CP (IB) No. 149/2023 titled as 'Board of Control for Cricket in India Vs. Think & Learn Pvt. Ltd.' on 14.11.2024 under Section 12A of the Insolvency and Bankruptcy Code, 2016 (i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e 2016 r/w Rule 6 of the Insolvency & Bankruptcy (Application to Adjudicating Authority) Rules 2016, against the same Corporate Debtor herein i.e., Think & Learn Private Limited and since the Corporate Insolvency Resolution Process (CIRP) has been initiated in respect of the Corporate Debtor therein by appointing the IRP, the instant C.P is disposed of by granting liberty to the Petitioner herein to put-forth their claim before the IRP appointed in C.P (IB) No. 149/BB/2023 in accordance with the provisions of the IBC 2016 and the Regulation made thereunder. 4. However, at the request of the Learned Senior Counsel for the Petitioner, we hereby grant liberty to the Petitioner to seek restoration/revival of the said petition bearing C.P (IB) No.55/BB/2024 depending on the subsequent developments in the matter at the Appellate level; if any. 5. Accordingly, C.P (IB) No.55/BB/2024 is disposed of and all the pending IAs in the present case stands closed." 6. Mr. Byju Raveendran, promoter and suspended director of the CD challenged the order dated 16.07.2024, passed in CP (IB) No. 149 of 2023, by way of an appeal i.e. CA (AT) (Ins) No. 262 of 2024 before this Tribunal on 17.07.2024. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....me Court is dismissed. Both the letter dated 16.08.2024 and Form FA dated 16.08.2024 are reproduced as under :- To Mr. Pankaj Srivastava August 16, 2024 58, 3rd Cross, Vinayak Nagar, Hebbal, Bengaluru - 560024. Email: [email protected]; [email protected] Subject: Payment of operational debt that formed the subject-matter of CP (IB) 149 of 2023 before the National Company Law Tribunal, Bengaluru Bench Dear Sir, 1. As you are aware, the Hon'ble National Company Law Tribunal, Bengaluru Bench, by its order dated July 16, 2024 ("NCLT Order"), admitted the petition of the Board of Control for Cricket in India ("BCCI") which was filed under Section 9 of the Insolvency and Bankruptcy Code, 2016 ("IBC") and initiated a corporate insolvency resolution process ("CIRP") against Think & Learn Private Limited ("Corporate Debtor") appointing you as the Interim Resolution Professional ("IRP"). BCCI had filed the above mentioned petition (CP(IB) 149 of 2023) under Section 9 of the IBC, as the Corporate Debtor had defaul....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Company Petition and take necessary steps towards the same. It is pertinent to note that the Settlement Offer made to BCCI was not subject to the Adjudicating Authority accepting the withdrawal of the CIRP proceedings against the Corporate Debtor. Mr. Riju Ravindran also submitted an undertaking and affidavit-cum-undertaking ("Undertakings") before the Hon'ble NCLAT undertaking to pay the Settlement Amount to BCCI in settlement of the Operational Debt. 4. Thereafter, the Hon'ble NCLAT, by its order dated August 2, 2024 ("NCLAT Order") in the Company Appeal, set aside the NCLT Order approving the settlement between the parties and with the caveat that if there was a breach of the Undertakings, the NCLT Order would automatically revive. 5. While proceedings before NCLAT were pending, GLAS filed a Motion for Temporary Restraining Order before the United States Bankruptcy Court, Delaware District, inter alia, seeking an order requiring Mr. Riju Ravindran be enjoined from making payments to BCCI amongst others, and also seeking an order that BCCI be enjoined from receiving Ravindran's personal assets. By its order dated August 8, 2024, GLAS' Motion was denied by the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rivastava is enclosed hereto as per your fee quote. Accordingly, as per our understanding no amount is pending for which a bank guarantee would be required under Regulation 30A(2)(a) of the CIRP Regulations. BCCI will further comply with the provisions of Regulation 30A(7) of the CIRP Regulations, if the occasion arises. 12. BCCI is mindful and respectful of the Hon'ble Supreme Court's order dated August 14, 2024 granting a stay on the NCLAT Order. BCCI does not wish to and / or intend to precipitate any action while the matter is sub-judice before the Hon'ble Supreme Court. For the sake of good order, please note that BCCI is enclosing the withdrawal application in Form FA only to ensure compliance with the terms of the Settlement Offer. You may be well advised not to (and certainly we do not advise you to) precipitate or pursue any action while the matter is sub- judice before the Hon'ble Supreme Court. We may reiterate that the withdrawal application is only being filed by BCCI with you in terms of the Settlement Offer, and should be placed before the Hon'ble NCLT and pressed for orders only and if the abovementioned pending appeal is dismissed by the Hon&#....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ncy and Bankruptcy Code, 2016. 3. I attach the required bank guarantee as per sub-regulation (2) of regulation 30A - Not applicable. On behalf of the Board of Control for Cricket in India: Name: Biswa Patnaik Authorised Signatory Date: August 16, 2024 Place: Mumbai 11. After the receipt of the letter and form FA, Respondent No. 1/IRP sent an email to the BCCI that form FA cannot be acted upon as the issue regarding settlement between the BCCI and the promoters is subject to final outcome of the civil appeal. The email dated 19.08.2024 is reproduced as under :- From: Pankaj Srivastava <[email protected]> Sent: Monday, August 19, 2024 7:24:09 PM To: <[email protected]>; Anitha Ram [email protected] Cc: Adity Chaudhury ; <[email protected]>; Bhavya Mohan <[email protected]> Subject: Re: Payment of operational debt that formed the subject-matter of CP (IB) 149 of 2023 before the National Company Law Tribunal, Bengaluru Bench CAUTION: This email originated from outside of Argus Partners. Do not click links or open attachments unless you are absolutely certain of the sender's email address and sure that the content is safe. Dear Sir/Ma'am, The....
X X X X Extracts X X X X
X X X X Extracts X X X X
....directed you the Operational Creditor to keep the settlement amount in a separate escrow account and to abide by the directions under order dated 14.08.2024, your letter dated 16.08.2024 (received on 19.08.2024) as well as the enclosed FORM-FA dated 16.08.2024 cannot be acted upon by the undersigned as any settlement/compromise between the Operational Creditor and the Suspended Board is subject to final outcome of the Civil Appeal (Diary) No. 35406 of 2024. The undersigned is duty bound to act as per the terms of the order passed by the Hon'ble Supreme Court. The undersigned has noted that in your letter as well, you have noted that the matter is sub- judice before the Hon'ble Supreme Court and therefore, forwarding the FORM FA to the undersigned is contrary to the directions of the Hon'ble Supreme Court and the undersigned cannot in any manner take any steps as contemplated in your letter qua the said FORM-FA at this stage, as the same will amount to an overreach and constitute a direct contravention of order dated 14.08.2024 passed by the Hon'ble Apex Court. Furthermore, the undersigned in view of the orders passed by the Hon'ble Apex Court cannot take any s....
X X X X Extracts X X X X
X X X X Extracts X X X X
....er of this Court dated 14 August 2024, is to be deposited with the CoC. The CoC is directed to maintain this amount in an escrow account until further developments and to abide by the further directions of the NCLT. 89. The civil appeal and special leave petition shall stand disposed of accordingly." 15. Pursuant to the liberty granted by the Hon'ble Supreme Court in para 87 of the aforesaid judgment, the Appellant in the first appeal wrote to the Appellant in the second appeal to take steps for withdrawal of the application filed under Section 9 pursuant to which the Appellant in the second appeal, namely, BCCI instructed Respondent No. 1/RP on 11.11.2024 to place form FA before the Tribunal. The IRP filed an application bearing I.A No. 837 of 2024 on 14.11.2024 in terms of Section 12A of the Code r/w Regulation 30A of the Regulations in view of the settlement between the parties. It is alleged that the Appellant in the first appeal filed an application bearing I.A No. 842 of 2024 seeking impleadment in CP (IB) No. 149 of 2023. It is also alleged that objections were filed by Aditya Birla Finance and Glass Trust Company LLC to the withdrawal of the application. 16. The app....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rofessional. c. The resolution passed by the reconstituted Committee of Creditors on 3rd September 2024, which appointed the Interim Resolution Professional as the Resolution Professional, is hereby set aside. In addition, any subsequent resolutions, if passed by the reconstituted CoC, are also nullified. d. The Applicant No. 1, Aditya Birla Finance Limited is hereby restored to the status of a Financial Creditor, with all attendant rights, privileges, and obligations, as envisaged under the Code and letter dated 05/09/2024 re-classifying Applicant No.1 as Operational Creditor is set aside. e. Accordingly, consequential prayers are dealt with." 3. The present appeal, however, is filed by the erstwhile director of the Corporate Debtor, namely, Think and Learn Pvt. Ltd., with the grievance that though the Tribunal has heard together with I.A No. 660 of 2024 and I.A No. 820 of 2024, the application filed by the RP bearing I.A No. 837 of 2024 in which the following prayers have been made :- a. Pass an order directing allowing the withdrawal of the CIRP of the CD which was admitted into CIRP vide order dated 16.07.2024 passed by this Tribunal. b. Pass an order direction dire....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the Hon'ble Supreme Court on 14.08.2024. The order of stay read as under :- "1 IA No 175985 of 2024 for permission to file the appeal and IA No 175989 of 2024 for permission to file the appeal without certified/plain copy of the impugned order are allowed 2 Issue notice, returnable on 23 August 2024. 3 Pending further orders, there shall be a stay of the operation of the impugned judgment and order dated 2 August 2024 of the National Company Law Appellate Tribunal, Chennai in Company Appeal (AT) (CH) (Ins) No 262 of 2024. 4 The Board of Control for Cricket in India (BCCI) shall maintain the amount of Rs 158 crores which has been realized in pursuance of the settlement, in a separate escrow account, to abide by further directions of this Court. 5 A short list of dates together with written submissions not exceeding three pages shall be filed by the respective parties and be emailed to [email protected]. 6 List the Civil Appeal on 23 August 2024 for final disposal." 10. According to the Appellant, before the order dated 02.08.2024 passed by this court could have been approved or set aside, the BCCI approached the IRP on 16.08.2024 for filing the application under ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....86 of 2024 and set aside the order passed by this Court on 02.08.2024 with the following conclusions :- "F. Conclusion 86.For the above reasons, we allow the present appeal and set aside the impugned judgment of the NCLAT dated 2 August 2024 in the above terms. At this stage, it would not be appropriate for this Court to adjudicate on the objections of the appellant to the settlement agreement on merits. The issues raised are the subject matter of several litigations in different fora, including the Delaware Court and investigation by various authorities, including the Enforcement Directorate, which are pending. 87.During the course of the proceedings before this Court, the CoC has been constituted. The parties are at liberty to invoke their remedies, to seek a withdrawal or settlement of claims, in compliance with the legal framework governing the withdrawal of CIRP. Nothing in this judgment should be construed as a finding on the conduct of any of the parties or other stakeholders involved in the insolvency proceedings. 88.The amount of Rs 158 crore, along with accrued interest, if any, which has been maintained in a separate escrow account pursuant to the Order of this C....
X X X X Extracts X X X X
X X X X Extracts X X X X
....een maintained in a separate escrow account pursuant to the Order of this Court dated 14 August 2024, is to be deposited with the CoC. The CoC is directed to maintain this amount in an escrow account until further developments and to abide by the further directions of the NCLT" and that the said proceedings are totally innocuous which is not going to harm the Appellant. He has also submitted that the Appellant does not have the locus to maintain this appeal. As against this, Counsel for the appellant has submitted that the Appellant has the locus because settlement application was filed pre-CoC whereas stand taken by the Respondent is that the application for settlement has been filed after the CoC. 18. We have heard Counsel for the parties in detail and are of the considered opinion that the grievance of the Appellant shall be addressed by issuing a direction to the Tribunal, seized of the application bearing I.A No. 837 of 2024, in which the order has already been reserved, to decide the said application as early as possible but preferably within a period of one week. Therefore, we order accordingly. 19. It is however made clear to the parties as well as to the Tribunal that ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nal has committed an error in holding that the application could have been filed by the IRP whereas the R1 was RP by that time. In this regard, it is submitted that the Tribunal, vide its order dated 29.01.2025, set aside his confirmation and held that he was only an IRP even on 14.11.2024. 21. It is further submitted that in para 63(ii) of the order dated 23.10.2024, the Tribunal heard their objections in the capacity as stakeholders before passing the impugned order and could not have turned around to observe that Form FA should be placed before the CoC for its commercial wisdom. 22. In the end, It is argued that the Appellant has filed I.A No. 842 of 2024 for impleadment but no hearing was afforded whereas in para 63(ii) of the order dated 23.10.2024 it has been categorically held that all concerned parties must be heard while deciding the withdrawal application. it is submitted that the Appellant, having paid the entire amount of settlement, was required to be heard by the Tribunal. 23. On the other hand, Counsel appearing on behalf of Respondent No. 4, defending the order of the Tribunal, has argued that in para 87 of the order passed by the Hon'ble Supreme Court it has....
X X X X Extracts X X X X
X X X X Extracts X X X X
....P sent an email dated 19.08.2024 that any steps taken at this stage of filing Form FA before the Tribunal shall be an overreach of the SC's order dated 14.08.2024 and that decision of the IRP dated 19.08.2024, though open to challenge was never questioned by the Appellant before the Tribunal and in the meanwhile the IRP constituted the CoC on 21.08.2024. 30. He has further submitted that only material date for withdrawal is the date on which the application is filed by the IRP and in this regard, he has relied upon a decision of this Court in the case of K.C. Sanjeev Vs. Easwara Pillai Kesavan Nair, 2020 SCC Online NCLAT 980. 31. Counsel for Respondent No. 4 has further submitted that even Form FA, which was submitted, was not complete because form FA must be accompanied with a bank guarantee as specified under Regulation 30A(2)(a)&(b). The non-provision of the bank guarantee has been acknowledged by the IRP in the withdrawal application. 32. It is further submitted that the Appellant (Riju Ravindran) has alleged that he was not heard on the application i.e. I.A No. 842 of 2024 which was firstly filed in the main petition and not in the withdrawal application. It is also sub....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ng share of 99.41%. 39. The Hon'ble Supreme Court allowed the appeal on 23.10.2024 and categorically observed that the CoC has now been constituted and granted liberty to the parties for pursue their settlement application within the legal framework. 40. On 11.11.2024 the BCCI instructed Respondent No. 1 to file Form FA which was filed on 14.11.2024. 41. According to the Appellant, the Hon'ble Supreme Court, in para 78 of its order dated 23.10.2024, has held that the situation before the NCLAT in the present case fell within serial number (ii). In this regard, para 63(ii) as well as 78 are reproduced as under :- 63(ii). After an application under Sections 7, 9, or 10 is admitted, but before the CoC has been constituted: Although Section 12A continues to be silent on this aspect, after the decision in Swiss Ribbons (supra), Regulation 30A was amended to provide for this eventuality. An application for withdrawal in such cases may be made by the applicant through the IRP.46 The IRP will then place the application before the NCLT, which may pass an order either approving or rejecting the application. As noted above, once the application has been admitted, the proceedings ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ing share of the committee of creditors, in such manner as may be specified.] Regulation 30A: Withdrawal of application. [30A. (1) An application for withdrawal under section 12A may made to the Adjudicating Authority - be (a) before the constitution of the committee, by the applicant through the interim resolution professional; (b) after the constitution of the committee, by the applicant through the interim resolution professional or the resolution professional, as the case may be: Provided that where the application is made under clause (b) after the issue of invitation for expression of interest under regulation 36A, the applicant shall state the reasons justifying withdrawal after issue of such invitation. (2) The application under sub-regulation (1) shall be made in Form FA of the 3[Schedule-I] accompanied by a bank guarantee- (a) towards estimated expenses incurred on or by the interim resolution professional for purposes of regulation 33, till the date of filing of the application under clause (a) of sub- regulation (1); or (b) towards estimated expenses incurred for purposes of clauses (aa), (ab), (c) and (d) of regulation 31, till the date of filing of the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ara 78 of the order of the Hon'ble Supreme Court and hold that the application for withdrawal, even though filed on 14.11.2018, has to be considered to have been filed before the constitution of the CoC because in para 78, the Hon'ble Supreme Court is stating the fact which existed at that time and in para 87 of the judgment it categorically deals with the factual situation because when the order of the Hon'ble Supreme Court was passed on 23.10.2024, the CoC had already been constituted on 21.08.2024 whereas the application form FA was filed on 14.11.2024 much thereafter. We also do not agree with the Appellant on the issue that the IRP had erred in not submitting the application for withdrawal within three days as stipulated in Regulation 30A(3) because of the fact that the Appellant himself had directed / asked the RP to file form FA only after the dismissal of the appeal which was otherwise allowed on 23.10.2024. Moreover, even if the IRP had erred in not submitting the application and replied on 19.08.2024 to the Appellant, expressing his difficulty in filing form FA during the pendency of the appeal before the Hon'ble Supreme Court for whatever reasons, the App....