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TaxTMI 
TaxTMI 
TaxTMI 
2024 (12) TMI 1727
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....uidator-Respondent for having affirmed a false affidavit in the contempt petition filed vide IA No. 694 of 2020. Aggrieved by the impugned order, the present appeal has been preferred by the Appellant. 2. Outlining in brief the factual background of the matter, Shri Debal Banerjee, Ld. Senior Counsel for the Appellant submitted that the Corporate Debtor-Gujarat NRE Coke Ltd. had been admitted into liquidation on 11.01.2018 and the present Respondent-Mr. Sumit Binani was appointed as the liquidator. The liquidator sought to have access to the office premises of the Corporate Debtor and for this purpose had sent a communication on 08.06.2020 to the father of the Appellant-Ms. Kavita Jagatramka seeking access to the office of the Corporate Debtor under liquidation following which request, the office premises was opened by the Appellant on 10.06.2020. However, on 01.07.2020, the liquidator filed Section 19(2) application under IBC seeking directions of the Adjudicating Authority for the impleaded parties to extend co-operation in allowing access to the liquidator to the office premises of the Corporate Debtor. The Adjudicating Authority, on 17.07.2020, after considering the Section ....
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.... of Criminal Procedure (CrPC), 1973. Hence, the Appellant filed IA No. 1175 of 2020 before the Adjudicating Authority claiming the following reliefs as reproduced below:- a) A preliminary inquiry may be conducted in the matter in accordance with law. b) To record the finding to that effect. c) A complaint be made in writing through a competent officer of this Adjudicating Authority and the same be sent to the Learned Chief Metropolitan Magistrate, Calcutta for taking cognizance of the said offence and to proceed with in accordance with law. d) A reference be made to the IBBI for initiating necessary disciplinary proceedings against the respondent in accordance with law. e) Appropriate order as to the cost of and incidental to this application. 4. Submission was pressed by the Ld. Sr. Counsel for the Appellant that the liquidator being an officer appointed by the Adjudicating Authority was bound to state the truth. However, by making false statements in their reply affidavit, the liquidator had committed an offence punishable under the IPC. It was stoutly asserted that the Respondent had made these false statements in a blatant manner ....
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....ion of the keys of the office of the Corporate Debtor. The CFO had categorically informed on 19.05.2020 that the keys of the office were in the custody of two office boys. In subsequent emails, it was further clarified by the employees of the Appellant that the boys in whose custody the keys were lying were not able to come to the office because of prevailing COVID pandemic and consequential closure of train services. The liquidator therefore tried to reach out to the two office-boys who were in possession of the keys according to the information shared by the Key Managerial Personnel ("KMP" in short) of the Appellant. In support of their contention, attention was adverted to a series of emails dated 18.05.2020 to 03.06.2020 that were exchanged between the Liquidator and the KMP employees as placed on record at pages 9-22 of the reply-affidavit filed on behalf of the Respondent in the present appeal. The Ld. Counsel of the Respondent contended that collective reading of these emails will show that the Liquidator was all along making genuine endeavours to gain access to the premises of the Corporate Debtor. At no stage did the office-boys or the KMP of the Appellant indicate or sugg....
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.... the said application and synopsis thereto admitted that the keys of the office premises were lying with the Appellant. For reasons of clarity, we would like to reproduce the relevant excerpts from the synopsis (dates and events) as well as the main application which clearly indicate that the liquidator had admitted of being aware of the fact that Kavita Jagatramka-Appellant was having the keys of the office premises being the owner of the office premises of the Corporate Debtor as below: Synopsis (page 98 of Appeal Paper Book) 05.06.2020 At 2:13 p.m. ....the Liquidator was shocked on becoming aware that the office boys of the Corporate Debtor never had the office keys. When the Liquidator finally got the contact numbers of the office the office boys did not have any keys and that the keys of the office were handed over to Ms. Kavita Jagatramka before the lockdown. The Liquidator, in anguish, issued an email and apprised the Respondents about their false statement and again requested the Respondents to urgently open the office. Main body of the application (page 112-113 of Appeal Paper Book) G. It is further imperative to mention here that vide thei....
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.... in support of it's purported claim with regard to the office spaces of the Corporate Debtor.... I say that I did not communicate with the respondent nos.2 and 3 as I was not aware of their purported interest in the office space of the Corporate Debtor.... I deny that I have suppressed any fact or have filed any false pleading. I deny that the order dated 17th July, 2020 has been availed with any malicious intent or any planned manner as alleged or at all. I deny that I have cooked up any story against the respondents." (Emphasis supplied) 10. The short question for our consideration is whether in the attendant facts and circumstances, there is sufficient credibility in the allegation of the Appellant that the liquidator was brazen about manipulating and misrepresenting facts and records before the Adjudicating Authority in the contempt petition which tantamount to committing of perjury. 11. At this juncture, it would be useful to look at the impugned order to find out how the Adjudicating Authority has viewed the allegations cast by the Appellant on the conduct of the liquidator. We find that the Adjudicating Authority has acknowledged that an "error" wa....
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....to the said office premises is justifiable as it was a necessary prerequisite to progress the liquidation process of the Corporate Debtor which was already initiated. As it was incumbent upon the liquidator to pursue the timely conclusion of the liquidation process, we cannot question the motive and intent of the liquidator to make the efforts he undertook in securing the keys of the office premises of the Corporate Debtor. It is also an indisputable fact that the liquidation process was underway while covid pandemic was raging which could have come in the way of the efforts undertaken by the liquidator to identify the holder of the keys and secure the keys to the office premises of the Corporate Debtor. We also cannot overlook the fact that the liquidator made a lot of effort by sending correspondences to the KMPs of the Corporate Debtor to identify the custodians of the keys and the whereabouts of the owner of the office premises of the Corporate Debtor. Inspite of these endeavours, the liquidator did not succeed in laying his hands on the keys or in getting correct information about the owner of the office premises of the Corporate Debtor. This stalemate compelled the liquidator....