7 Ca-At (I) 836-2024

14
THE NATIONAL COMPANY LAW APPELLATE TRIBUNAL

AT NEW DELHI
APPELLATE JURISDICTION
COMPANY APPEAL (AT) (INSOLVENCY) NO. ______ OF 2024
Arkay Logistics Limited …. Appellant

Versus
Mr. Abhijit Guhathakurta,
Liquidator of EPC Construction (India) Limited .… Respondent
MEMORANDUM OF APPEAL PREFERRED UNDER SECTION 61 OF
INSOLVENCY AND BANKRUPTCY CODE, 2016, AGAINST THE
ORDER DATED 08.01.2024 PASSED BY THE HON’BLE NATIONAL
COMPANY LAW TRIBUNAL, MUMBAI BENCH COURT-II
MOST RESPECTFULLY SHOWETH:
I. DETAILS OF THE APPEAL
The present Appeal is being filed under Section 61 of the
Insolvency and Bankruptcy Code, 2016 on behalf of the Appellant,
Arkay Logistics Limited, seeking appropriate orders and directions
setting aside the impugned order dated 08.01.2024 passed by the
Hon’ble National Company Law Tribunal, Mumbai [“Hon’ble
Adjudicating Authority”] in IA No. 2777 of 2022 in CP. (IB)
No.1832/IBC/MB/MAHG/2017 titled Mr. Abhijit Guhathakurta
Liquidator of EPC Construction (India) Ltd., v. Arkay Logistics
Limited in the matter of IDBI Bank Ltd. v. EPC Constructions
(India) Ltd. Copy of the impugned order dated 08.01.2024, passed

15
by the Hon’ble National Company Law Tribunal, Mumbai Bench,
is annexed hereto and marked as ANNEXURE – A/1.
II. DATE OF RECEIPT OF IMPUGNED ORDER
That the Impugned Order dated 08.01.2024 passed by the Hon’ble
Adjudicating Authority in Interlocutory Application being IA No.
2777 of 2022 in CP. (IB) No.1832/IBC/MB/MAHG/2017 and was
uploaded from the website of Hon'ble National Company Law
Tribunal on 09.01.2024 as it was not uploaded prior thereto. The
Present Appeal and a website copy of the impugned order are
being filed.
III. ADDRESS OF the Appellant
The Address of the Appellant for services is set out as under:
i) Address of the Appellant
Arkay Logistics Limited

Office No. 261, Level 2,
Upper Level, Kamala House,
Senapati Bapat Marg, Kamala City,
Lower Parel, Mumbai – 400013
ii) Address of Legal Representative
MR. HIMANSHU SATIJA / GANDHI LAW ASSOCIATES /

HARSH SAXENA / SHEVAAZ KHAN
D-2, L.G.F., GULMOHAR PARK
NEW DELHI-110049
MB: +91-8527559185
Email: [email protected]
IV. ADDRESS OF THE RESPONDENT
The address of the Respondents for service of all notices in the
Appeal is set out as under:

16
Mr. Abhijit Guhathakurta
Liquidator of EPC Constructions (India) Limited
1st Floor, Tower-II, Equinox Business Park
(Peninsula Techno Park), Off BKC
LBS Marg, Kurla (W)
Mumbai-70
V. JURISDICTION OF THE HON’BLE APPELLATE TRIBUNAL
The Appellant humbly submits that the subject matter of the
Appeal is within the jurisdiction of this Hon’ble National Company
Law Appellate Tribunal [“Hon’ble Appellate Tribunal”] as
Section 61 of the Insolvency and Bankruptcy Code, 2016 [“Code”]
states that any person aggrieved by an Order or decision of the
Hon’ble Adjudicating Authority may prefer an Appeal to this
Hon’ble Appellate Tribunal.
VI. LIMITATION
The Appellant declares that the present Appeal has been filed
within the period specified in sub-section (2) of Section 61 of the
Code, as the specified time period of 30 days for preferring the
present Appeal has not yet expired.
VII. FACTS OF THE CASE
1. The Appellant herein, namely, Arkay Logistics Limited had
various business dealings with the Corporate Debtor namely,
EPC Constructions (India) Ltd. (Formerly known as Essar
Projects (India) Limited). In light thereof, Appellant had
receivables from the Corporate Debtor namely, EPC
Constructions (India) Ltd. (Formerly known as Essar Projects
(India) Limited) to the tune of Rs. 16,35,63,970/-.

17
2. The Corporate Debtor, vide Assignment Agreement dated
15.06.16 (“Assignment Agreement”), assigned all its liabilities
(including liabilities towards Appellant) to one entity namely
Imperial Consultants & Securities (“ICS”) w.e.f. 01.04.16. As per
statutory requirements, the said assignment was done after taking
consent from the Appellant.
3. Pursuant to the said Assignment Agreement, the Corporate
Debtor vide its letter dated 15.06.16 informed the Appellant
about the assignment of the debt due to the Appellant to ICS.
4. That ICS, through a letter dated 01.07.16, provided assurance
to the Appellant regarding the repayment of the outstanding
amount by 31.12.16. Additionally, ICS, in the aforementioned
correspondence, suggested to the Appellant that in the event of
ICS's default in payment, the Appellant would retain the right to
rescind its acceptance of the Assignment Agreement, thereby
reinstating the liability of the Corporate Debtor to repay the said
debt to the Appellant.
5. The Appellant vide its letter dated 02.01.17 duly notified ICS of
its failure to fulfill the payment obligation by the agreed deadline
of December 31, 2016. Consequently, the Appellant exercised
its right to revoke the assignment, thereby entitling the Appellant
to outstanding receivables amounting from the Corporate
Debtor herein.
6. The Corporate Debtor vide its letter dated 14.02.17 requested
the Appellant herein to reconsider the revocation of assignment
agreement with the following broad proposal:

18
 The Appellant’s outstanding dues will be cleared by the
Corporate Debtor on or before 31.03.2017;
 The Appellant shall be required to refund the said amount
within 15 days in case receipt of any payment from ICS under
the Assignment Agreement.
7. That in the interim, as the Corporate Debtor was facing a
liquidity crunch, it had also taken a short-term advance of INR
3,00,00,000 (Rupees Three Crores Only) from the Appellant.
8. Therefore, from 01.03.17 to 18.01.18, in lieu of the debt due and
payable by the Corporate Debtor to the Appellant, the Corporate
Debtor paid an amount of INR. 18,10,00,000 (Rupees Eighteen
Crores Ten Lakhs Only) to the Appellant. In addition, the
Appellant has placed its own fixed deposits as the security to
facilitate the issuance of Bank Guarantee for fulfilling the
conditions of the contract secured by the Corporate Debtor and
the Liquidator, while acting as the Monitoring Agency of the
Corporate Debtor, has admitted the fact in its affidavit-in-reply
dt. 25.09.20 to the application bearing no. 1152 of 2020 in CP
(IB) 3249 of 2018 filed by the Appellant’s Interim Resolution
Professional before the Hon’ble NCLT, Mumbai that the
Applicant has provided the security for the facility extended to
the Corporate Debtor by Axis Bank Limited for an amount of
Rs.21,18,00,000/- through its Two (2) fixed deposits booked by
Axis Bank Limited for an amount of Rs.14,58,00,000/- and
Rs.6,60,00,000/- bearing no. 917040024014860 and
917040024016002, respectively, totaling to an amount of

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Rs.21,18,00,000/-.
9. In the meanwhile, the Adjudicating Authority, vide its order
dated 20.04.18, initiated Corporate Insolvency Resolution
Process of EPC Constructions (India) Ltd.
10. The Adjudicating Authority vide its order dated 07.05.21
directed for liquidation of the Corporate Debtor as a going
concern and appointed Respondent No. 1 as its Liquidator.
11. Pursuant thereto, the Respondent No. 1 filed an Interlocutory
Application being IA No. 2777 of 2023 before the Hon’ble
Adjudicating Authority, praying inter alia for a direction against
the Appellant to pay an amount of Rs 18.10 Cr to the Corporate
Debtor.
A copy of the Application bearing I.A. No. 2777 of 2023 filed by
the Respondent No. 1 is annexed herewith and marked as
Annexure – A-2.
12. It is the case of the Respondent No. 1 that:
(a) On 18.01.17, the Corporate Debtor had been awarded a
contract by GSPL India Gasnet Limited ["GIGL"] on 18.01.2017,
pursuant to which it had to submit a Performance Bank
Guarantee ["PBG"], amounting to INR 21,17,00,000 [Indian
Rupees Twenty-One Crores Seventeen Lakhs Only].
(b) Owing to the liquidity problems at that time, the Corporate
Debtor requested the Appellant to arrange for issuance of the
required PBG from their existing line of credit with Axis Bank.
Such an arrangement was agreed to, and Axis Bank at the

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14

THE NATIONAL COMPANY LAW APPELLATE TRIBUNAL

Arkay Logistics Limited …. Appellant

MEMORANDUM OF APPEAL PREFERRED UNDER SECTION 61 OF

INSOLVENCY AND BANKRUPTCY CODE, 2016, AGAINST THE

ORDER DATED 08.01.2024 PASSED BY THE HON’BLE NATIONAL

COMPANY LAW TRIBUNAL, MUMBAI BENCH COURT-II

MOST RESPECTFULLY SHOWETH:

I. DETAILS OF THE APPEAL

The present Appeal is being filed under Section 61 of the

Insolvency and Bankruptcy Code, 2016 on behalf of the Appellant,

Arkay Logistics Limited, seeking appropriate orders and directions

setting aside the impugned order dated 08.01.2024 passed by the

Hon’ble National Company Law Tribunal, Mumbai [“Hon’ble

Adjudicating Authority”] in IA No. 2777 of 2022 in CP. (IB)

No.1832/IBC/MB/MAHG/2017 titled Mr. Abhijit Guhathakurta

Liquidator of EPC Construction (India) Ltd., v. Arkay Logistics

Limited in the matter of IDBI Bank Ltd. v. EPC Constructions

(India) Ltd. Copy of the impugned order dated 08.01.2024, passed

by the Hon’ble National Company Law Tribunal, Mumbai Bench,

is annexed hereto and marked as ANNEXURE – A/1.

II. DATE OF RECEIPT OF IMPUGNED ORDER

That the Impugned Order dated 08.01.2024 passed by the Hon’ble

Adjudicating Authority in Interlocutory Application being IA No.

2777 of 2022 in CP. (IB) No.1832/IBC/MB/MAHG/2017 and was

uploaded from the website of Hon'ble National Company Law

Tribunal on 09.01.2024 as it was not uploaded prior thereto. The

Present Appeal and a website copy of the impugned order are

III. ADDRESS OF the Appellant

The Address of the Appellant for services is set out as under:

i) Address of the Appellant

Arkay Logistics Limited

ii) Address of Legal Representative

MR. HIMANSHU SATIJA / GANDHI LAW ASSOCIATES /

IV. ADDRESS OF THE RESPONDENT

The address of the Respondents for service of all notices in the

Appeal is set out as under:

V. JURISDICTION OF THE HON’BLE APPELLATE TRIBUNAL

The Appellant humbly submits that the subject matter of the

Appeal is within the jurisdiction of this Hon’ble National Company

Law Appellate Tribunal [“Hon’ble Appellate Tribunal”] as

Section 61 of the Insolvency and Bankruptcy Code, 2016 [“Code”]

states that any person aggrieved by an Order or decision of the

Hon’ble Adjudicating Authority may prefer an Appeal to this

Hon’ble Appellate Tribunal.

within the period specified in sub-section (2) of Section 61 of the

Code, as the specified time period of 30 days for preferring the

present Appeal has not yet expired.

VII. FACTS OF THE CASE

1. The Appellant herein, namely, Arkay Logistics Limited had

various business dealings with the Corporate Debtor namely,

EPC Constructions (India) Ltd. (Formerly known as Essar

Projects (India) Limited). In light thereof, Appellant had

receivables from the Corporate Debtor namely, EPC

Constructions (India) Ltd. (Formerly known as Essar Projects

(India) Limited) to the tune of Rs. 16,35,63,970/-.

15.06.16 (“Assignment Agreement”), assigned all its liabilities

(including liabilities towards Appellant) to one entity namely

Imperial Consultants & Securities (“ICS”) w.e.f. 01.04.16. As per