Now, the liquidator can seek Sebi’s help to get the order executed.
Sundaresh Bhatt, liquidator for the ABG Shipyard had approached the Ahmadabad bench of the National Company Law Tribunal (NCLT) to recover the amount of about Rs 101 crore from the promoters, which were allegedly siphoned off from the company’s books for personal gain.
In April 2019, the NCLT ordered the liquidation of the company in the absence of any viable resolution plan. Interestingly, Sebi had passed an order in March this year, directing the promoters of the company Rishi and Kamlesh Agarwal to return that money to the company within three months along with 8 per cent interest.
Subsequently, the liquidator moved the tribunal to recover Rs 101 crore from the erstwhile promoters and made the capital markets regulator also a party in the case.
“Since, the instant order is passed by the competent authority of the Sebi, as such, the liquidator is at liberty to approach the Sebi to get the appropriate order for the realization of the said amount,” said a division bench of Manorama Kumari and C. Thirunavukkarasu in its order of October 8.
ABG Shipyard is part of the RBI’s so-called first list of the 12 cases for mandatory resolution. The company owed over Rs 18,000 crore to its financial and operational creditors at the time of passing a liquidation order by the tribunal.
In March 2020, the Sebi had directed Second Land Developers (SLDPL), now known as Shivris Resources, and its promoters to pay illegal gains of a little over Rs 101 crore to ABG Shipyard within three months. All those companies were promoted by Rishi and Kamlesh Agarwal.
“This order should not be treated as a precedent as it was passed in very peculiar circumstances. In this case, the liquidator in a way sought to enforce the order passed by Sebi in NCLT which would mean taking away the jurisdiction of Sebi for enforcement and the tribunal has no such power to enforce such orders,” said Ashish Pyasi Associate Partner Dhir & Dhir Associates. “In these circumstances, the tribunal found that the competent authority is Sebi and as it has passed the order already, the liquidator can approach the capital markets regulator for realisation and enforcement of such order.”
In the case, advocate Nipun Singhvi represented the liquidator along with Mumbai-based law firm AKR Advisors.
Sundaresh Bhat, liquidator for ABG Shipyard and also partner and leader of resolution process advisory at consultancy BDO, was not immediately available for the comment.