Full Text
HIGH COURT OF DELHI
Date of Decision: 07th AUGUST, 2023 IN THE MATTER OF:
RAINBOW DIGITAL SERVICES PVT LTD & ANR ...... Petitioners
Through: Mr. Manoj Kumar Garg, Advocate
Through: Mr. Vinod Tiwari, Govt Pleader R-1 UOI
JUDGMENT
1. The Petitioners have approached this Court under Article 226 of the Constitution of India praying for the following reliefs:- "i) Issue a writ of mandamus or any other writ, order or directions to be issued to the Respondent No.2, 3, & 4 to remit the amount of Rs. 57,80,065/-(Rupees Fifty Seven Lakh Eighty Thousand and Sixty Five) owed to the said Company undergoing Liquidation in relation to certain orders/consignments which are neither delivered to the customers nor returned to the origin RTO) and these orders are pending for delivery and there are orders which are to be delivered and for which COD amount is collected (as per India Post Website);and/or ii) Issue an order or directions pertaining to stringent action against the Respondent No. 2, 3, & 4 for committing dereliction of duties and causing grave prejudice to the present Petitioner and other abovementioned following persons by not remitting amount of Rs. 57,80,065/-(Rupees Fifty Seven Lakh Eighty Thousand and Sixty Five) owed to the said Company undergoing Liquidation in relation to certain orders/consignments which are neither delivered to the customers nor returned to the origin RTO) and these orders are pending for delivery and there are orders which are to be delivered and for which COD amount is collected (as per India Post Website); and/or iii) Pass such other order or orders as may be deemed fit and appropriate under the facts and circumstances of the case."
2. The facts in brief, leading to the instant petition are as follows:i. It is stated that an application under the Insolvency and Bankruptcy Code (IBC Code) was filed before the National Company Law Tribunal (NCLT) against the Growthways Trading Private Limited. ii. The application was admitted on 17.12.2019 and an Interim Resolution Professional (IRP) was appointed by the NCLT. The IRP found that a sum of Rs.57,80,065/- was to be recovered by Growthways Trading Private Limited from the Postal Department on account of undelivered orders/consignments to customers by Growthways Trading Private Limited. The IRP sought payment of this amount from the Department of Posts. iii. Material on record suggests that IRP took steps for the recovery of an amount of Rs.57,80,065/- from the Department of Posts towards the orders/consignments which were neither delivered to the customers nor were returned to Growthways Trading Private Limited. iv. It is also stated that by a letter dated 29.12.2020, the Senior Superintendant Airmall Sorting Division, Department of Posts claimed that all the eligible articles were paid and compensated to the Growthways Trading Private Limited. v. It is stated on 27.03.2021, legal notices were sent on behalf of the IRP but to no avail. An application being I.A. No.4848/2021 was filed by the IRP before the NCLT under Section 60(5) of the IBC Code against the Senior Superintendant of Post Offices, Department of Posts for recovery of the said amounts. vi. Since the resolution process failed, vide Order dated 02.11.2021 Growthways Trading Private Limited went into liquidation and the IRP was appointed as a Liquidator of the company. vii. On 20.12.2021, notices were issued by the NCLT on the application filed under Section 60(5) of the IBC Code by the IRP. viii. It is stated that on 28.06.2022, a meeting was convened between the Stakeholders Committee of Creditors of Growthways Trading Private Limited and it was decided that all identified Not Readily Realizable Assets (NRRA) of the company, which included the present amount, were assigned to an eligible person after holding an e-auction. ix. It is stated that on 12.07.2022, an e-auction was conducted and the highest bid was placed by one Mr. Jatin Nagpal and a deed of assignment in respect of NRRA was executed between the Liquidator and Mr. Jatin Nagpal. x. Material on record reveals that the application being I.A. No.6008/2022 was filed by the Liquidator of Growth Trading Private Limited for substitution of Jatin Nagpal as Applicant in I.A. No.4048/2021, which was allowed by the NCLT on 04.01.2023. xi. It is stated by the Petitioner that since Mr. Jatin Nagpal was not in a position to realise the said amount, he executed a deed of assignment in favour of the Petitioner herein. xii. The Petitioner has now filed the instant writ petition before this Court claiming the aforesaid reliefs.
3. Learned Counsel for the Petitioner contends that Section 37 of the Indian Post Office Act, 1898 stipulates that every undelivered postal article after detained in the post office for a period prescribed under Section 37, shall be either forwarded free of further charge to the post office at which it was posted or returned to the sender or returned to the office of the Postmaster General.
4. It is stated that several articles sent by Growthways Trading Private Limited were neither delivered to the customers nor returned to the origin RTO and, therefore, the consignment was realizable and are classified as NRRA which now stands assigned to the Petitioner herein. Learned Counsel states that the Petitioner has no other remedy other than approaching this Court by invoking jurisdiction under Article 226 of the Constitution of India for recovery of the amount.
5. As stated above, Mr. Jatin Nagpal, from whom the Petitioner had taken the assignment, has already filed an application under Section 60(5) of the IBC Code and as the IRP has already moved an application under Section 60(5) of the IBC Code seeking direction for the recovery of the amount by the Corporate Debtor along with supporting affidavit, notices have been issued on the said application and the same is pending disposal before the NCLT.
6. Heard learned Counsel for the parties and perused the material on record.
7. At this juncture, it is necessary to extract Section 60(5) of the Insolvency & Bankruptcy Code, 2016 and Regulation 37A of the Insolvency & Bankruptcy Board of India (Liquidation Process ) Regulation, 2016 and the same reads as under:-
for preferential, undervalued, extortionate credit and fraudulent transactions referred to in sections 43 to 51 and section 66 of the Code."
8. A perusal of the above Sections and Regulation shows that the IRP has already approached the NCLT for the purpose of realisation of the NRRA. Under Regulation 37A of the Insolvency & Bankruptcy Board of India (Liquidation Process) Regulation, 2016, the NRRA was put on auction which was purchased by Mr. Jatin Nagpal, who has impleaded himself as the successor in interest of the IRP.
9. The Petitioner has now stepped into the shoes of Mr. Jatin Nagpal. Since the issue is pending before the NCLT, it was not open for the Petitioner to approach this Court under Article 226 of the Constitution of India for recovery of the amount.
10. The Petitioner has no other option but to move an application before the NCLT substituting Mr. Jatin Nagpal and pursue his remedy there. This Court, therefore, is not inclined to interfere in the present case exercising its jurisdiction under Article 226 of the Constitution of India when parallel proceedings for the very same relief are being pursued the NCLT.
11. The writ petition is dismissed along with pending application(s), if any.
SUBRAMONIUM PRASAD, J AUGUST 7, 2023 hsk