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Case Citation: (2024) ibclaw.
in 68 NCLAT
1
NATIONAL COMPANY LAW APPELLATE TRIBUNAL PRINCIPAL BENCH,

NEW DELHI
Comp. App (AT) (Ins) No. 1343 of 2019
&
I.A. No. 3823, 3824, 3825 & 3826 of 2019 & 470 of 2020 & 3655 of
2023
IN THE MATTER OF:
Gloster Cables Ltd. …Appellant
Versus
Fort Gloster Industries Ltd. &Ors. …Respondents
Present:
For Appellant : Mr. Abhinav Vashisht & Mr. Chandar Lal, Sr.
Advocates along with Ms. Varsha Banerjee, Ms.
Nancy Roy, Ms. Mahima Ahuja, Ms. Prakriti
Varshney, Ms. Yashi Agrawal & Mr. Abhinav
Bhalla.
For Respondents : Mr. Shaunak Mitra, Mr. PK Jhunjhunwalla, Mr.
Anil Agarwalla & Ms. Neha Sharma, for R-1. Mr.
Anand Varma & Mr. Ayush Gupta, for RP. Mr.
Nishit Agrawal, Ms. Kanishka Mittal & Ms. Vanya
Agrawal, for Intervenors.
JUDGMENT
Per: Justice Rakesh Kumar Jain:
This appeal is preferred by Gloster Cables Limited. The brief history of
the Appellant is that Crest Cables Private Limited, a Private Limited
Company, limited by shares, was incorporated in the year 1995 under the
provisions of the Companies Act 1956. It was incorporated by the Modi
family (50% equity) and the Rathi family (50%equity). It was incorporated to
take over the assets of Sputnik Cables Private Limited, which was a sick
company at that time and had plant located about 35 KMs' from
Secunderabad. It was incorporated to manufacture cables and commenced

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Case Citation: (2024) ibclaw.in 68 NCLAT
2
its business operations since 1995. However, with the induction of Bangur
Group as an investor with equity participation Crest Cables Pvt. Ltd. was
changed to Gloster Cables Limited in the year 2004. The shareholding
pattern now was S K Bangur Group 35.91%, Modi Family 35.91% Rathi
Family 28.18%.
2. Fort Gloster Industries Limited (Corporate Debtor) is Respondent No.
1. It was incorporated in the year 1890 as a public limited company and was
in the business of manufacturing of power cables. Respondent No. 1 is the
owner of the trademark viz "GLOSTER" bearing Trademark Registration No'
690772 in class 9 (hereinafter referred as the ‘Trademark')
3 Gloster Limited (Respondent No. 2) was incorporated on 02.01.1923
and is in the business of Jute Products. Bijay Murmuria, is the Resolution
Professional (Respondent No. 3) of Respondent No. 1.
4. Briefly put, a former employee (Jayant Panja),of the Corporate Debtor,
filed an application bearing CP (IB) 61/KB/2018 under Section 9 of the
Insolvency and Bankruptcy Code, 2016 (in short ‘Code’) which was admitted
on 09.08.2018. Initially, Manish Jain was appointed as the Interim
Resolution Professional (In short ‘IRP’) but lateron he was replaced by the
present IRP (Respondent No. 3) on 04.12.2018.
5. Respondent No. 3 (RP) filed an application under Section 30(6) of the
Code seeking approval of the resolution plan of the Corporate Debtor
submitted by Respondent No. 2, duly approved by the CoC by vote share of
73.21% of the members of the CoC.

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6. While this application was pending, the Appellant filed an application
CA (IB) 713/KB/2019 before the Adjudicating Authority (National Company
Law Tribunal, Kolkata Bench, Kolkata in which the following prayers have
been made:-
“a) To pass an order thereby allowing the present Applicant to

intervene in the present proceeding;
b) To pass an order thereby directing that any Resolution Plan if

approved by this Hon'ble Adjudicating Authority shall exclude
the rights in the Trade Mark “Gloster" from the assets of the
corporate Debtor, including, exclusion of the Trade Mark
"Gloster" from the Corporate name of the Corporate Debtor since
the said Trade Mark ‘Gloster’ is not a property/asset of the
Corporate Debtor;
c) To pass an order clarifying that, in approving the CIRP, no

presumption may be drawn as to any authorization or right
emerging from the aforesaid approval that gives the right to the
Corporate Debtor, or the successful H1, to continue to use the
Trade Mark ‘Gloster’ or the term "GLOSTER" as part of the
Corporate Debtor’s corporate name.
d) To pass an ex-parte interim order in terms of prayer (a), (b)

and (c);
e) Any other relief or reliefs may be granted as this Hon’ble

Tribunal deem fits.”
7. The aforesaid application was dismissed by the Adjudicating Authority
vide its order dated 27.09.2019. The Adjudicating Authority has noticed
three objections raised by the RP, CoC and Resolution Applicant. Firstly,
they had submitted that the Corporate Debtor was referred to BIFR in the
year 2001 and vide Order dated 10-09-2001, the BIFR admitted the
reference, directed the Corporate Debtor not to disposeof any- fixed or
current assets of the Corporate Debtor without the consent of its co-creditors
and the BÍFR, therefore, the deeds executed prior to the execution of the

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assignment deed dated 20.09.2017 has no legal effect. Secondly, claim made
by the Appellant on the basis of the assignment deed dated 20.09.2017 is in
violation of Section 43 and 46 of the Code and thirdly, the registration of
trade mark in the name of the Appellant is invalid in view of Section 14 of
the Code because the CIRP was initiated on 09.08.2018 and the registration
certificate was issued on 27.09.2018. All three objections have been
maintained by the Adjudicating Authority holding that all deeds executed
between Respondent No. 1 and the Appellant were void and illegal, the
transaction relied upon by the Appellant is undervalued transaction and is
hit by Section 45(2)(b) of the Code and that the registration having been done
after the imposition of moratorium is hit by Section 14 of the Code.
Aggrieved by the impugned order dated 27.09.2019, the present Appeal has
been filed under Section 61 of the Code by the Appellant.
8. While narrating the facts of the case, Counsel for the Appellant has
submitted that a technical collaboration agreement was entered into between
the Appellant and the Corporate Debtor on 02.05.1995 by which the
Appellant was granted the right to use the trade mark for marketing its
products for a period of 8 years and the Appellant agreed to pay a royalty of
2% of ex-works prices of the products sold or leased.
9. During the subsistence of the agreement dated 02.05.1995, the
Corporate Debtor fell Sick and was referred under Sick Industrial Companies
Act, 1985 (SICA) whereinafter Board of Industrial and Financial
Reconstruction (BIFR) directed the Corporate Debtor, vide its order dated
10.09.2001, not to dispose off any fixed or current assets of the Corporate

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Debtor without the consent of the secured creditors and the BIFR. Since, the
technical collaboration agreement dated 02.05.1995 was for 8 years and had
expired by efflux of time, therefore, another technical collaboration
agreement dated 02.05.2003 was entered into between the parties by which
Corporate Debtor granted the Appellant the right to use the trade mark for a
further period of five years against the payment of 1% royalty. It is alleged
that the Corporate Debtor suspended its business since 09.12.2003 and
thus there was no sale/turnover since 2003-04. It is further alleged that the
Corporate Debtor held a shareholding of 16.7% in the Appellant Company
but exited the Appellant Company in March, 2004 and on 20.07.2004 the
name of the Appellant was changed from Crest Cables Pvt. Ltd. to Gloster
Cables Limited. It is further alleged that the Appellant entered into a
trademark agreement on 29.07.2004 with the Corporate Debtor for a long-
term exclusive license to use the trademark for a consolidated fee of Rs. 3
Crores with an annual royalty of Rs. 2 Lakh. This agreement was executed
for a period of 33 years which was to be renewed automatically. It is further
submitted that the Appellant granted a loan of Rs. 10 Crores to the
Corporate Debtor vide loan agreement dated 10.11.2006 by way of
hypothecation of trade mark. The loan was repayable within five years i.e on
or before 30.12.2011 and it was also stipulated therein that if the payment is
delayed then the same shall be payable together with interest @ 15% per
annum. It is alleged that a sum of Rs. 5,68,05,114/- was disbursed to the
Corporate Debtor by the Appellant under the loan agreement dated
10.11.2006 from November, 2006 to October, 2009. It is also submitted that
the Corporate Debtor executed a deed of hypothecation on 31.01.2008 and

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hypothecated the trademark in favour of the Appellant by way of first and
exclusive charge. The Corporate Debtor entered into a supplemental
trademark agreement dated 15.07.2008 with the Appellant whereby it
assigned the trade mark in favour of the Appellant against the consideration
of Rs. 10 lakh and it was provided therein that the assignment shall
automatically become effective without any further act or deed upon
vacation/discharge of the BIFR order dated 10.09.2001. It is also alleged
that during the period 2008 to 2010 the parties before the BIFR, including
all financial institutions and bank, were fully aware about the status of
transfer of the exclusive rights and exclusive usage of the trade mark in
favour of the Appellant which is treated to have been disclosed by Allahabad
Bank (now being Pegasus Asset Reconstruction Company) about the fact
that the Corporate Debtor had made over all its rights to use trade mark in
favour of the Appellant in terms of the agreements dated 29.07.2004 and
15.07.2008 and a sum of Rs. 3 Crores was additionally paid as an upfront to
the Corporate Debtor. It is further alleged that vide 8th schedule of the Code,
SICA stood repealed on 01.12.2016 and all reference made before the BIFR
under the SICA stood abated unless the company under reference made a
reference under clause (b) of Section 4 of the Sick Industrial Companies
(Special Provisions) Repeal Act, 2003 to the NCLT under the Code within 180
days from 01.12.2016but none of the creditors of the Corporate Debtor
applied for initiation of proceedings against the Corporate Debtor within the
period of 180 days which expired on 29.05.2017. It is further submitted that
supplemental trademark dated 15.07.2008 executed between the Corporate
Debtor and the Appellant, pursuant to the repeal of SICA w.e.f. 01.12.2016,

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the trademark would automatically get assigned to the Appellant without
any further act to be performed but still the Appellant entered into a deed of
hypothecation on 20.09.2017 with the Corporate Debtor for the purpose of
recording assignment of trademark. It was categorically mentioned in the
said agreement that ‘the assignor to execute the present Deed in order to
enable the recordal of the assignment with goodwill of the
Trademark'GLOSTER' before the Trade Mark Registry, which request has
been accepted by the Assignor'. It is further submitted that on 09.08.2018
CIRP was initiated, IRP was appointed and moratorium was imposed. The
Appellant made an application to the Registrar of Trademark on 25.08.2018
for recording the assignment of the registered trademark in its favour and on
17.09.2018 the Registrar of Trademark registered the Appellant company as
the subsequent proprietor of trademark which was valid up to 15.12.2022
and subsequently renewed till 14.12.2031. It is also submitted that the CoC
apprised in its 5th meeting that the forensic audit report found no
preferential, undervalued, fraudulent or wrongful trading transactions in
terms of Section 43, 45, 49, 50 and 66 of the Code and in the forensic audit
report no related party preferential or fraudulent transaction whatsoever was
found. It is further submitted that the resolution plan submitted by
Respondent No. 2 was approved on 24.04.2019 in the 7th CoC meeting. It is
alleged that although the resolution plan recorded all the above facts and the
agreements between the Appellant and the Corporate Debtor but the
resolution applicant claimed the trademark and recorded that ‘RA therefore
believes that the trademark Gloster has been assigned and/or transferred to
GCL is bad in law. RA understands that the said trademark is the lawful

8
property of the CD’. It is alleged that in the aforesaid facts and
circumstances, the Appellant filed CA No. 713/2019 under Section 60(5) on
30.05.2019 seeking clarification that the trademark should not be included
as an asset of the Corporate Debtor which was contested by all three parties
and the Adjudicating Authority has dismissed the application holding that
the trademark is an asset of the Corporate Debtor and hence, the present
appeal.
10. After narrating the aforesaid facts, Counsel for the Appellant has
challenged the impugned order, inter alia, on the ground that the
Adjudicating Authority had no jurisdiction to adjudicate upon the title of the
property/asset (trademark) in view of Section 134(1)(b) of the Trademark Act,
1999 (in short ‘Act, 1999’) as a suit would only lie before the District Court.
11. It is submitted that determination of the title/ownership of the
trademark is not within the jurisdiction of the Adjudicating Authority under
the Code. In this regard, reliance has been placed upon the judgments of the
Hon’ble Supreme Court rendered in the case of Gujarat Urja Vikas Nigam
Limited Vs. Amit Gupta & Ors., 2021 SCC Online SC 194, Embassy Property
Developments Pvt. Ltd. Vs. State of Karnataka &Ors, 2019 SCC Online SC
1542, Tata Consultancy Service Limited Vs. Vishal Ghisulal Jain, RP, SK
Wheels Pvt. Ltd., 2021 SCC Online SC 1113 and Sicom Ltd. & Anr. Vs.
Kitply Industries Ltd. &Ors. CA (AT) (Ins) No. 849 of 2021 decided on
10.04.2023. It is submitted that though the application has been filed by the
Appellant itself under Section 60(5) of the Code but keeping in view of the
fact that the jurisdiction vests with the District Court to decide the question

9
regarding title of the trademark under the Act, 1999, therefore, the
Adjudicating Authority has committed an error in declaring that the
trademark is the property of the Corporate Debtor. It is further submitted
that the Appellant became the owner of the trademark with the
supplemental trademark agreement dated 15.07.2008 when it was assigned
to it by the owner (assignor). At that time, the order of prohibition issued by
the BIFR was in operation, therefore, it was made clear that "the assignment
shall become effective without any further act or deed until after the order
dated 10.09.2001 passed by the BIFR, is vacated and/or discharged or in
the event FGIL/Corporate Debtor is wound up”. It is submitted that the
order dated 10.09.2001 became non-operative with the coming into force of
SICA Special Provision Repeal Act, 2016 w.e.f. 01.12.2016 but the
Adjudicating Authority while relying upon the observation made by the
Hon’ble Supreme Court in the case of AIR 2O13 Supreme Court 2235 in
Jehal Tanti & Ors Vs. Nageshwar Singh (D) thr. LRs. held that the interim
orders passed are within the jurisdiction when passed and effective till the
Court decide that it has no jurisdiction to entertain the suit. On the basis of
this proposition, the Adjudicating Authority has decided against the
Appellant that the transaction of the assignment of deed during the currency
of the order passed by the BIFR on 10.09.2001 is illegal.In this regard,
Counsel for the Appellant has relied upon a decision of the Hon’ble Supreme
Court in the case of Thomson Press (India) Limited Vs. Nanak Builders &
Investors Pvt. Ltd. &Ors.,(2013) 5 SCC 397 to contend that a transfer
pendente lite is neither illegal nor void ab initio but remains subservient to
rights eventually determined by Court in pending litigation. It is next argued

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that the Appellant has become the owner of the trademark on the date when
the trademark was assigned vide supplemental trademark agreement dated
15.07.2008 and in this regard, he has referred to Section 37 and 38 of the
Act, 1999 as per which the person registered as proprietor of a trademark
has the power to assign the trademark and further contended that as per
Section 38 of the Act, 1999 a registered trademark is assignable and
transmissible whether with or without the goodwill of the business
concerned. In support of his contention that the right title and interest in the
registered trademark, assigned to the Appellant on 12.07.2008 was created,
reference has been made to the decisions rendered in the case of Sun
Pharmaceuticals Industries Ltd. Vs. Cipla Ltd., MANU/DE/1527/2008, Skol
Breweries Ltd. Vs. Som Distilleries and Breweries ltd. & Ors.
MANU/MH/1194/2009 and Cinni Foundations Vs. Rajkumar Shah & Sons
& Anr. ILR (2010) 1 Delhi 754. It is further submitted that the Adjudicating
Authority has committed an error in dismissing the application on the
ground that the registration of the trademark in the name of the Appellant
was invalid as it was in violation of Section 14 of the Code. It is observed
that the CIRP was initiated on 09.08.2018 and the moratorium was imposed
whereas the application for registration was submitted on 15.09.2018 on the
basis ofthe deed of assignment dated 20.09.2017. In this regard, it is
submitted by Counsel for the Appellant that the assignment of the
trademark took place on 15.07.2008 with the supplemental trademark
agreement as it is permissible under Section 37 and 38 of the Act, 1999
whereas the registration of the trademark was a procedural formality in view
of Section 45 of the Act, 1999. It is further submitted that though it has

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been noticed by the Adjudicating Authority that the RP did not form any
opinion that the Corporate Debtor has given any preference transaction
during the relevant period to invoke Section 43 of the Code and that there
has been no examination/determination by the RP that the transaction in
question was undervalued during the relevant period to invoke Section 45 of
the Code. Admittedly, no application was filed by the RP under Section 43,
44, 45 and 46 but it has been held by the Adjudicating Authority that the
procedural compliance is directory and the Adjudicating Authority has the
jurisdiction to pass suo motu order in respect of the aforesaid provisions of
the Act. It is further submitted that the Adjudicating Authority has further
held that the Appellant has sought the declaration about the trademark on
the strength of the deed which were found executed within the period of two
years preceding commencement of CIRP. It has referred to the deed of
assignment dated 20.09.2017 because it is within the period of two years
reckoned backward from 09.08.2018 when the CIRP was initiated. Counsel
for the Appellant has relied upon a decision of the Hon’ble Supreme Court in
the case of Anuj Jain Interim Resolution Professional for Jaypee Infratech
limited Vs. Axis Bank Limited, 2020 SCC Online SC 237.
12. On the other hand, Counsel appearing on behalf of Respondent No. 3
(RP) has submitted that in the books of accounts of the Corporate Debtor, in
particular the annual report and balance sheet for the year 2017-18, the
trademark was recorded as the Corporate Debtor’s asset (albeit without
recognizing any value thereof) with a note that it was hypothecated to the
Appellant towards an interest free term loan. The balance sheet also

12
recorded that the Corporate Debtor was receiving royalty and licence fee
from the Appellant and the Appellant was mentioned as a related party of the
Corporate Debtor but there was no assignment agreement during the
financial year 2017-18. It is submitted that the intangible asset belonged to
the Corporate Debtor and there was no indication that any third party rights
have been created. He has further submitted that he had received the record
of the proceedings happened before the BIFR much less the order dated
10.09.2001 as per which the prohibition was imposed regarding the transfer
of any fixed or current assets of the Company without the consent of the
secured creditor and BIFR and as such the supplemental trademark
agreement dated 15.07.2008, which is the basis of the case set up by the
Appellant that the registered trademark was assigned to it, has been
executed during the period of prohibition order passed by the BIFR and
cannot be looked into. It is further submitted that in so far as the issue of
jurisdiction raised by the Appellant is concerned, the Appellant itself
subjected it to the jurisdiction of the Adjudicating Authority by filing the
application under Section 60(5) of the Code and the Adjudicating Authority
has the jurisdiction to decide the issue regarding asset which are central to
the success of the CIRP. It further submitted by him that even if for the sake
of argument, the trademark was assigned on 15.07.2008, it was required to
be registered which is a mandatory requirement under Section 45(1) of the
Act, 1999 and since the registration of the assigned trademark has been
done only in September, 2018 without the information of the RP and in
violation of Section 14 of the code, therefore, the registration was obtained
fraudulently.

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13. Counsel appearing on behalf of Respondent No. 2 has also reiterated
the stand taken by the RP. It is further submitted that Section 18(f)(iv) of the
Code clearly provides that the IRP shall take control and custody of any
asset over which the CD has ownership rights as recorded in the balance
sheet of the Corporate Debtor or any other registry, including intangible
assets such as intellectual property rights. It is argued that on the
commencement of the CIRP date, in the Corporate Debtor’s balance sheet
the trademark is shown as the asset of the Corporate Debtor and the
Appellant had paid the license fee for using the same, meaning thereby, the
Appellant was merely a licensee and not the owner. It is further submitted
that even the trademark registry reflected that the Corporate Debtor is the
owner of the said trademark as on CIRP commencement date. He has also
referred to the order of the BIFR dated 10.09.2001 and contended that the
prohibition to sell the assets of the Corporate Debtor was in force upto
December, 2016 when the Code came into force, therefore, any transaction
in between was patently illegal. It is next argued that the supplemental
trademark agreement dated 15.07.2008 was insufficiently stamped with Rs.
100 stamp paper whereas the valid assignment of the trademark duties are
more than Rs. 8000 which is required to be paid, therefore, the said
document cannot be read. It is also argued that the document dated
15.07.2008 is undervalued as it purports to assign the valuable trademark
for Rs. 10 lakh only whereas in 2006 the said trademark was admittedly
hypothecated by the Corporate Debtor in favour of the Appellant for Rs. 10
Crores. As regards, the argument of jurisdiction raised by the Appellant to
adjudicate upon the issue as to whether the trademark belongs to the

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Corporate Debtor or not. It is submitted that it is within the domain of the
Adjudicating Authority under Section 60(5)(b)(c) of the Code which provides
for decision any claim by or against the Corporate Debtor or any question or
fact arising out of the CIRP. It is further submitted that Section 18(f)(iv) of
the Code clearly covers intellectual property and in fact mandates that an
IRP/RP should take custody of all such assets reflected in the Corporate
Debtor’s balance sheet or with any other registry. It is also submitted that
the deed of assignment dated 20.09.2017 is not a valid document and no
assignment trademark could have happened thereunder. It is submitted that
the stamp duty of Rs. 8000 only paid on 24.08.2018, the application for
change of name was filed on 25.08.2018 and change of registration was on
17.09.2018, all after the date of CIRP on 09.08.2018 which is in violation of
Section 14 of the Code which provides a complete shield for all assets of the
Corporate Debtor. It is also argued that there is some element of fraud in
this case also because the attorney depenning & depenning had acted for
both the corporate debtor and the Appellant and issued no objection for the
alleged assignment on behalf of the Corporate Debtor to the trademark
registry.
14. Counsel appearing on behalf of the Corporate Debtor (Respondent No.
1) has taken the same standas argued by the RP and RA.
15. In rebuttal, Counsel for the Appellant has argued that his whole case
is based upon the supplemental trademark agreement dated 15.07.2008, the
validity of which has not been challenged by Respondents before the
Adjudicating Authority and no finding has been recorded in this regard

15
except that the agreement was executed during the subsistence of the order
of stay of the BIFR. It is further submitted that even if the agreement was
stated to be insufficiently stamped yet it is a curable defect and the proper
stamped duty has been paid. It is also reiterated that in the 5th CoC meeting,
the CoC was apprised that the forensic audit report found no preferential,
undervalued, fraudulent or wrongful trading transactions. In the forensic
audit report, no related party preferential or fraudulent transaction
whatsoever was found, therefore, the RP had rightly not filed the application
under Section 43, 45, 49, 50 and 66 of the Code but the Adjudicating
Authority has committed an error in suo motu passing the order and
declaring the transaction between the parties being hit by Section 43 and 44
of the Code.
16. We have heard Counsel for the parties and perused the record with
their able assistance.
17. In so far as the first issue raised by the Appellant is concerned, it is
argued that the dispute is in regard to the title over the registered trademark
for which the jurisdiction vests with the District Court in terms of Section
134 of the Act, 1999 and the Adjudicating Authority cannot take a decision
under Section 60(5) of the Code. In this regard, it would be relevant to refer
to Section 134 of the Act, 1999 and Section 60 of the Code which are
reproduced as under:-
Section 134. Suit for infringement, etc., to be instituted

before District Court.
(1) No suit--
(a) for the infringement of a registered trade mark; or

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(b) relating to any right in a registered trade mark; or

(c) for passing off arising out of the use by the defendant of any
trade mark which is identical with or deceptively similar to the
plaintiff's trade mark, whether registered or unregistered,
shall be instituted in any court inferior to a District Court having
jurisdiction to try the suit.
(2) For the purpose of clauses (a) and (b) of sub-section (1), a
"District Court having jurisdiction" shall, notwithstanding anything
contained in the Code of Civil Procedure, 1908 (5 of 1908) or any
other law for the time being in force, include a District Court
within the local limits of whose jurisdiction, at the time of the
institution of the suit or other proceeding, the person instituting
the suit or proceeding, or, where there are more than one such
persons any of them, actually and voluntarily resides or carries on
business or personally works for gain.
Explanation.--For the purposes of sub-section (2), "person" includes
the registered proprietor and the registered user.
Section 60. Adjudicating Authority for corporate persons.

(1) The Adjudicating Authority, in relation to insolvency resolution
and liquidation for corporate persons including corporate debtors
and personal guarantors thereof shall be the National Company
Law Tribunal having territorial jurisdiction over the place where
the registered office of the corporate person is located.
(2) Without prejudice to sub-section (1) and notwithstanding
anything to the contrary contained in this Code, where a corporate
insolvency resolution process or liquidation proceeding of a
corporate debtor is pending before a National Company Law
Tribunal, an application relating to the insolvency resolution
or 1 [liquidation or bankruptcy of a corporate guarantor or personal
guarantor, as the case may be, of such corporate debtor] shall be
filed before such National Company Law Tribunal.
(3) An insolvency resolution process or 2 [liquidation or bankruptcy
proceeding of a corporate guarantor or personal guarantor, as the
case may be, of the corporate debtor] pending in any court or
tribunal shall stand transferred to the Adjudicating Authority
dealing with insolvency resolution process or liquidation
proceeding of such corporate debtor.
(4) The National Company Law Tribunal shall be vested with all the
powers of the Debt Recovery Tribunal as contemplated under Part
III of this Code for the purpose of sub-section (2).

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(5) Notwithstanding anything to the contrary contained in any

other law for the time being in force, the National Company Law
Tribunal shall have jurisdiction to entertain or dispose of—
(a) any application or proceeding by or against the corporate debtor
or corporate person;
(b) any claim made by or against the corporate debtor or corporate
person, including claims by or against any of its subsidiaries
situated in India; and
(c) any question of priorities or any question of law or facts, arising
out of or in relation to the insolvency resolution or liquidation
proceedings of the corporate debtor or corporate person under this
Code.
(6) Notwithstanding anything contained in the Limitation Act, 1963
(36 of 1963) or in any other law for the time being in force, in
computing the period of limitation specified for any suit or
application by or against a corporate debtor for which an order of
moratorium has been made under this Part, the period during
which such moratorium is in place shall be excluded.
18. Section 60(5) of the Code provides the power to the Adjudicating
Authority which can be invoked to entertain or dispose of any claim made by
or against the corporate debtor or corporate person, including claims by or
against any of its subsidiaries situated in India; andalsoany question of
priorities or any question of law or facts, arising out of or in relation to the
insolvency resolution or liquidation proceedings of the corporate debtor or
corporate person under this Code. Section 238 of the Code creates an
overriding effect which provides that he provisions of this Code shall have
effect, notwithstanding anything inconsistent therewith contained in any
other law for the time being in force or any instrument having effect by virtue
of any such law. In the present case, the provisions of Section 60(5)(c) of the
Code would apply for the purpose of jurisdiction of the Adjudicating
Authority to entertain or dispose of any question of law or facts, arising out
of or in relation to the insolvency resolution or liquidation proceedings of the
corporate debtor or corporate person because in the present case, the

18
insolvency resolution is in question, as the resolution plan, approved by the
CoC has been filed by the RP and in these proceedings a question has been
raised about one of the assets of the Corporate Debtor i.e. the registered
trademark which is an intangible assets. In this regard, observation made
by the Hon’ble Supreme Court in the case of Gujarat Urja (Supra) is required
to be referred to which read as under:-
“71. The institutional framework under the IBC contemplated the

establishment of a single forum to deal with matters of
insolvency, which were distributed earlier across multiple fora. In
the absence of a court exercising exclusive jurisdiction over
matters relating to insolvency, the corporate debtor would have to
file and/or defend multiple proceedings in different fora. These
proceedings may cause undue delay in the insolvency resolution
process due to multiple proceedings in trial courts and courts of
appeal. A delay in completion of the insolvency proceedings would
diminish the value of the debtor‘s assets and hamper the
prospects of a successful reorganization or liquidation. For the
success of an insolvency regime, it is necessary that insolvency
proceedings are dealt with in a timely, effective and efficient
manner. Pursuing this theme in Innoventive (supra) this court
observed that ―one of the important objectives of the Code is to
bring the insolvency law in India under a single unified umbrella
with the object of speeding up of the insolvency process‖. The
principle was reiterated in Arcelor Mittal (supra) where this court
held that ―the non-obstante Clause in Section 60(5) is designed
for a different purpose: to ensure that the NCLT alone has
jurisdiction when it comes to applications and proceedings by or
against a corporate debtor covered by the Code, making it clear
that no other forum has jurisdiction to entertain or dispose of
such applications or proceedings‖. Therefore, considering the text
of Section 60(5)(c) and the interpretation of similar provisions in
other insolvency related statutes, NCLT has jurisdiction to
adjudicate disputes, which arise solely from or which relate to the
insolvency of the Corporate Debtor. However, in doing do, we
issue a note of caution to the NCLT and NCLAT to ensure that
they do not usurp the legitimate jurisdiction of other courts,
tribunals and fora when the dispute is one which does not arise
solely from or relate to the insolvency of the Corporate Debtor.
The nexus with the insolvency of the Corporate Debtor must
exist.”

19
19. It has been held that the non-obstante clause in Section 60(5) is
designed for a different purpose to ensure that the NCLT alone has the
jurisdiction when it comes to applications and proceedings by or against a
corporate debtor covered by the Code, making it clear that no other forum
has jurisdiction to entertain or dispose of such applications or proceedings.
It was held by the Hon’ble Supreme Court that the NCLT has the jurisdiction
to adjudicate disputes, which arise solely from or which relate to the
insolvency of the corporate debtor but it has also been held that while doing
so, the Tribunal may not usurp the legitimate jurisdiction of other courts,
tribunals and fora when the dispute is one which does not arise solely from
or relate to the insolvency of the corporate debtor and nexus with the
insolvency of the corporate debtor must exist. It is pertinent to mention that
the facts of the case of Gujarat Urja (Supra) are altogether different from the
facts of the present case because in that case PPA was terminated solely on
the ground of insolvency since the event of default contemplated under
Article 9.2.1(e) was the commencement of insolvency proceedings against the
corporate debtor. In the absence of the insolvency of the corporate debtor,
there would be no ground to terminate the PPA. The termination is not on a
ground independent of the insolvency, therefore, the dispute in that case
solely arising out of and relates to the insolvency of the corporate debtor and
it was thus held that the RP can approach the NCLT for adjudication of the
dispute that were related to the insolvency resolution. Similarly, in the
present case also, the issue is in regard to the title of the property of the
Corporate Debtor which is in CIRP and as per Section 60(5)(c) of the Code
the question of fact as to whether the asset of the Corporate Debtor is the

20
property of the Appellant on account of the agreement dated 15.07.2008 or
is the property of the Corporate Debtor in CIRP is a question relating to the
insolvency resolution. In so far as the decision rendered in the case of
Embassy Property Developments Pvt. Ltd. (Supra) is concerned, it was a case
where the corporate debtor was holding a mining lease granted by the
Government of Karnataka which was to expire on 25.05.2018. A notice for
premature termination of the lease was issued on 09.08.2017, on the
allegation of violation of statutory rules and the terms and conditions of the
lease deed, no order of termination had been passed till the date of initiation
of the CIRP. The IRP therein addressed a letter dated 14.03.2018 to the
Chairman of the monitoring committee as well as the director of mines and
geology informing them of the commencement of CIRP. He also wrote a letter
dated 21.04.2018 to the director for seeking the benefit of deemed extension
of the lease beyond 25.05.2018 upto 31.03.2020 in terms of Section 8-A (6)
of the mines and minerals (development and regulation) Act, 1957. Since, no
response was found, therefore, RP filed a writ petition seeking a declaration
that the mining lease should be deemed to be valid upto 31.03.2020 but
during the pendency of the writ petition, Government of Karnataka passed
an order dated 26.09.2018, rejecting the proposal for deemed extension. The
RP moved an application before the NCLT for setting aside the order of the
Government of Karnataka and seeking a declaration that the lease should be
deemed to be valid upto 31.03.2020 which was allowed by the NCLT and
ultimately the Adjudicating Authority directed the Government of Karnataka
to execute the supplement lease deed. In the background of these facts, the
Hon’ble Supreme Court has held that “therefore, in the light of the statutory

21
scheme as culled out from various provisions of the IBC, 2016 it is clear that
wherever the corporate debtor has to exercise a right that falls outside the
purview of the IBC, 2016 especially in the realm of the public law, they
cannot through the RP, take a bypass and go before NCLT for the
enforcement of such a right” However, facts of the present case are
altogether different from the aforesaid case. In so far as the decision in the
case of Tata Consultancy Service Limited (Supra) is concerned, the Hon’ble
Supreme Court has reiterated that the RP can approach the NCLT for
adjudication of disputes which relate to the insolvency resolution process,
but when the dispute arises dehors the insolvency of the corporate debtor,
the RP must approach the relevant competent authority. Similar view has
been expressed by this Court in the case of Sicom Ltd. (Supra).
20. Thus, in view of the aforesaid discussion, we are of the considered
opinion that the Adjudicating Authority had the jurisdiction which was
though not challenged before it by the Appellant when it itself had filed the
application for seeking a declaration/clarification as to whether the
trademark is the property of the Corporate Debtor or the Appellant but still
in view of Section 60(5)(c), we are of the opinion that if a question of law or
fact arising out or in relation to the insolvency resolution then the
Adjudicating Authority shall have the jurisdiction. Thus, the contention
raised by the Appellant that the Adjudicating Authority had no jurisdiction
to decide the lis between the parties in so far as the application is concerned,
is rejected.

22
21. As regards the validity of the supplemental trademark agreement
dated 15.07.2008 is concerned, the Adjudicating Authority has held that it
was executed between the Corporate Debtor and the Appellant when the
order of prohibition dated 10.09.2001 passed by the BIFR was in operation
in which it directed that ‘the company/promoters were directed under
Section 22A of the Act not to dispose of any fixed or current assets of the
company without any consent of the secured creditor and BIFR’. The
Adjudicating Authority has held that even if the proceedings of the BIFR
were abated with the coming into force of the Code in 01.12.2016, the
interim orders passed shall remain effective and relied upon a decision of the
Hon’ble Supreme Court in the case of Jehal Tanti &Ors. (Supra), however, in
the case of Thomson Press (India) Limited (Supra) the Hon’ble Supreme
Court has held that “there is, therefore, little room for any doubt that the
transfer of the suit property pendete lite is not void ab initio and that the
purchaser of any such property takes the bargain subject to the rights of the
plaintiff in the pending suit. Although the above decisions do not deal with a
fact situation where the sale deed is executed in breach of an injunction
issued by a competent Court, we do not see any reason why the breach of
any such injunction should render the transfer whether by way of an
absolute sale or otherwise ineffective. The party committing the breach may
doubtless incur the liability to be punished for the breach committed by it
but the sale by itself may remain valid as between the parties to the
transaction subject only to any directions which the competent Court may
issue in the suit against the vendor.” In the present case, it was specifically
mentioned in the deed of 15.07.2008 that ‘the assignment shall become

23
effective without any further act or deed until after the order dated
10.09.2001 passed by the BIFR, is vacated and/or discharged or in the event
FGIL/Corporate Debtor is wound up’. It is needless to mention that the
assignment was contingent upon the vacation of the order dated 10.09.2001
and with the repeal of SICA, 2016 w.e.f. 01.12.2016, the condition was lifted
and the Appellant became assignee of the trademark w.e.f. the date when the
supplemental trademark agreement dated 15.07.2008 was executed,
therefore, the finding recorded by the Adjudicating Authority in this regard
that because there was a stay by the BIFR and agreement was executed
during that period is null and void is not in accordance with law.
22. The next submission of the Appellant that the Appellant became the
owner of the trademark with its assignment to it by the registered assignor of
the Corporate Debtor by executing the supplemental trademark agreement
dated 15.07.2008 is concerned, reliance has been placed by the Appellant
upon the Sections 37 and 38 of the Act, 1999, which are reproduced as
under:-
“37. Power of registered proprietor to assign and give receipts
The person for the time being entered in the register as proprietor
of a trade mark shall, subject to the provisions of this Act and to
any rights appearing from the register to be vested in any other
person, have power to assign the trade mark, and to give effectual
receipts for any consideration for such assignment.
38. Assignability and transmissibility of registered trade

marks
Notwithstanding anything in any other law to the contrary, a

registered trade mark shall, subject to the provisions of this
Chapter, be assignable and transmissible, whether with or
without the goodwill of the business concerned and in respect

24
either of all the goods or services in respect of which the trade

mark is registered or of some only of those goods or services.”
23. The Appellant has relied upon a decision in the case of Sun
Pharmaceuticals (Supra) in which the Hon’ble Delhi High Court has held as
under:-
“11. I also find that under Section 2(1)(w) a registered trade

mark is a trade mark which is on the Register and is in force.
Registered trade mark is thus different from registered
proprietor. Assignment under Section 2(b) is an assignment in
writing by act of parties concerned. Assignment does not require
registration. The Register of Trade Mark under Section 6 is to
contain trade marks with the name etc of proprietor. Section
37 empowers the person entered in the Register as proprietor of
trade make to assign the same. Section 38 makes the trade
mark a tradeable property/commodity subject to restrictions
in Sections 40 to 44. Thus registered trade mark is different
from proprietor thereof. Thereafter, Section 45(1) provides
"where a person becomes entitled by assignment ....to a
registered trade mark, he shall apply in the prescribed manner
to the Registrar to Register his title....." meaning thereby that
assignment of title in registered trade mark is complete on
assignment within the meaning of Section 2(b), i.e., on writing
between the assignor and the assignee. For assignment to be
complete, the Registrar is not involved. It is further borne out
from language supra of Section 45(1) that the assignee acquires
title to registered trade mark on assignment and not by
registration. Registration is of title acquired by assignment. The
inquiry which a Registrar is to make before such registration of
title acquired by assignment is of satisfaction of proof of title and
as to disputes if any as to assignment. This inquiry is limited to
this extent only in contradistinction to inquiry which the
Registrar is to make before registering a trade mark. A dispute
as to assignment can be raised by the assignor or by some
person claiming prior assignment and not by strangers or by
persons claiming adversely to the assignor.
12. It follows that the assignee immediately on assignment i.e.,
by writing acquires title to the registered trade mark.
Registration under Section 45(1) is "on proof of title". Thus title
exists in assignee even before registration under Section 45(1).
13. The next question which arises is, if title in registered trade
mark vests in assignee, after assignment and before registration,
who is entitled to exercise rights under Section 28 as registered
proprietor. If the interpretation canvassed by defendant herein is
to be adopted it will amount to allowing a person who is divested

25
by assignment of title to registered trade mark to nevertheless

continue exercising such rights; it would play havoc with
assignability and trading in trade marks, expressly permitted
under the Act. If the person in whom title has vested by
assignment, is held to be not entitled to exercise such rights
owing to non registration, the same result will follow, besides
giving a premium to third parties. In that situation, in the
interregnum there will be none to enforce rights in the registered
trade mark. "Registered proprietor" in Section 28, rather than
adopting a pedantic interpretation has to be interpreted as
including a person having title as registered proprietor by way of
assignment or transmission.
14. It is also worth noting that what appears to have prevailed
with the Madras High Court was the inaction of the plaintiff
therein to have applied to the Registrar. In the present case,
however, the plaintiff had applied for registration as far back as
in the year 2000. There is nothing to show that the plaintiff is in
any way to blame for the Registrar having not decided either way
on the application of the plaintiff. In the circumstances the
maxim actus cureaeneminemgravabit - an act of court shall
prejudice no man and lex non cogitadimpossibilia - the law does
not compel a man to do that which he cannot possibly perform,
would also become applicable. The plaintiff cannot be made to
suffer for the actions of the Registrar. It has been held in A.P.
Electricity Regulatory Commission v R.V. K. Energy Pvt Ltd
JT 2008 (7) SC 138:Manu/SC 2615/2008 that these principles
apply to quasi judicial bodies as well. It is also significant that
the registration, if affected shall date back to the date of the
application.”
24. In the case of Skol Breweries limited (Supra) the Hon’ble Bombay High
Court has held that ‘the registration granted by the Registrar under Section
45 is proof of title to the trademark of the assignee or the person who
acquires the same by transmission. Thus, a person who has acquired title to
a trademark by assignment or transmission cannot be non-suited for want of
title per se on the ground that the assignment or transmission is not entered
on the register’.
25. In the case of Cinni Foundations (Supra) has held that ‘to put it
differently, acquisition of title to the trademark is not dependent upon the

26
assignment being registered, as the purpose of the registration is only to
place on record the fact that title has been created and registration by itself
does not create title which already stands created on the execution of the
assignment deed’.
26. In view of the aforesaid decisions, it is well-nigh proved that the title in
the trademark vested with the Appellant with the execution of the
supplemental trademark agreement dated 15.07.2008 by which the
registered trade mark was assigned by the Corporate Debtor to the Appellant
as an assignee subject of course to the condition that it will become effective
until after the order dated 10.09.2001 passed by the BIFR is vacated or
discharged.
27. The next submission of the Appellant is that the Adjudicating
Authority has committed an error in holding that the transaction relied upon
by the Appellant is undervalued transaction and is hit by Section 45(2)(b)
and that it is also against the provisions of Section 43(2)(a) being a
preferential transaction as it has been done within a period of two years
preceding of commencement of CIRP and has referred to Section 43, 45 and
46 of the Code which are reproduced as under:-
“Section 43: Preferential transactions and relevant time.

*43. (1) Where the liquidator or the resolution professional, as the
case may be, is of the opinion that the corporate debtor has at a
relevant time given a preference in such transactions and in such
manner as laid down in sub-section (2) to any persons as referred
to in sub-section (4), he shall apply to the Adjudicating Authority
for avoidance of preferential transactions and for, one or more of
the orders referred to in section 44.
(2) A corporate debtor shall be deemed to have given a preference,
if—

27
(a) there is a transfer of property or an interest thereof of the

corporate debtor for the benefit of a creditor or a surety or a
guarantor for or on account of an antecedent financial debt or
operational debt or other liabilities owed by the corporate debtor;
and
(b) the transfer under clause (a) has the effect of putting such
creditor or a surety or a guarantor in a beneficial position than it
would have been in the event of a distribution of assets being
made in accordance with section 53.
(3) For the purposes of sub-section (2), a preference shall not
include the following transfer —
(a) transfer made in the ordinary course of the business or
financial affairs of the corporate debtor or the transferee;
(b) any transfer creating a security interest in property acquired
by the corporate debtor to the extent that—
(i) such security interest secures new value and was given at the
time of or after the signing of a security agreement that contains a
description of such property as security interest and was used by
corporate debtor to acquire such property; and
(ii) such transfer was registered with an information utility on or
before thirty days after the corporate debtor receives possession of
such property:
Provided that any transfer made in pursuance of the order of a
court shall not, preclude such transfer to be deemed as giving of
preference by the corporate debtor.
Explanation.—For the purpose of sub-section (3) of this section,
“new value” means money or its worth in goods, services, or new
credit, or release by the transferee of property previously
transferred to such transferee in a transaction that is neither void
nor voidable by the liquidator or the resolution professional under
this Code, including proceeds of such property, but does not
include a financial debt or operational debt substituted for
existing financial debt or operational debt.
(4) A preference shall be deemed to be given at a relevant time,
if—
(a) it is given to a related party (other than by reason only of being
an employee), during the period of two years preceding the
insolvency commencement date; or
(b) a preference is given to a person other than a related party
during the period of one year preceding the insolvency
commencement date.
Section 45: Avoidance of undervalued transactions.

28
*45. (1) If the liquidator or the resolution professional, as the case

may be, on an examination of the transactions of the corporate
debtor referred to in sub-section (2) 1[**] determines that certain
transactions were made during the relevant period under section
46, which were undervalued, he shall make an application to the
Adjudicating Authority to declare such transactions as void and
reverse the effect of such transaction in accordance with this
Chapter.
(2) A transaction shall be considered undervalued where the
corporate debtor—
(a) makes a gift to a person; or
(b) enters into a transaction with a person which involves the
transfer of one or more assets by the corporate debtor for a
consideration the value of which is significantly less than the
value of the consideration provided by the corporate debtor,
and such transaction has not taken place in the ordinary course
of business of the corporate debtor.
Section 46. Relevant period for avoidable transactions.
(1) In an application for avoiding a transaction at undervalue, the
liquidator or the resolution professional, as the case may be, shall
demonstrate that—
(i) such transaction was made with any person within the period
of one year preceding the insolvency commencement date; or
(ii) such transaction was made with a related party within the
period of two years preceding the insolvency commencement date.
(2) The Adjudicating Authority may require an independent expert
to assess evidence relating to the value of the transactions
mentioned in this section”
28. It is submitted that it is an admitted case that no application has been
filed by the RP for obtaining an order of the Adjudicating Authority under
Section 43 and 45 and the order has been passed by the Adjudicating
Authority suo motu. It is submitted that as per Section 43(1) the liquidator
or the resolution professional, as the case may be, has to form an opinion
that the corporate debtor has at a relevant time given a preference in such
transactions and in such manner as laid down in sub-section (2) to any
persons as referred to in sub-section (4) and then he shall apply to the

29
Adjudicating Authority for avoidance of preferential transactions and for, one
or more of the orders referred to in section 44. Similarly, it is submitted that
for the purpose of avoidance of undervalued transaction, it is for the
liquidator or the RP to examine the transaction of the corporate debtor and
determine that the transactions made during the relevant period under
Section 46 were undervalued and then he shall make an application to the
Adjudicating Authority to declare such transaction as void. In this regard,
Counsel for the Appellant has placed reliance upon the judgment in the case
of Anuj Jain (Supra) and referred to para 140 which is reproduced as under:-
“140.However, we are impelled to make one comment as regards

the application made by IRP. It is noticed that in the present
case, the IRP moved one composite application purportedly
under Sections 43, 45 and 66 of the Code while alleging that the
transactions in question were preferential as also undervalued
and fraudulent. In our view, in the scheme of the Code, the
parameters and the requisite enquiries as also the consequences
in relation to these aspects are different and such difference is
explicit in the related provisions. As noticed, the question of
intent is not involved in Section 43 and by virtue of legal fiction,
upon existence of the given ingredients, a transaction is deemed
to be of giving preference at a relevant time. However, whether a
transaction is undervalued requires a different enquiry as per
Sections 45 and 46 of the Code and significantly, such
application can also be made by the creditor under Section 47 of
the Code. The consequences of undervaluation are contained in
Sections 48 and 49. Per Section 49, if the undervalued
transaction is referable to sub-section (2) of Section 45, the
Adjudicating Authority may look at the intent to examine if such
undervaluation was to defraud the creditors. On the other hand,
the provisions of Section 66 related to fraudulent trading and
wrongful trading entail the liabilities on the persons 105
responsible therefor. We are not elaborating on all these aspects
for being not necessary as the transactions in question are
already held preferential and hence, the order for their avoidance
is required to be approved; but it appears expedient to observe
that the arena and scope of the requisite enquiries, to find if the

30
transaction is undervalued or is intended to defraud the

creditors or had been of wrongful/fraudulent trading are entirely
different. Specific material facts are required to be pleaded if a
transaction is sought to be brought under the mischief sought to
be remedied by Sections 45/46/47 or Section 66 of the Code. As
noticed, the scope of enquiry in relation to the questions as to
whether a transaction is of giving preference at a relevant time,
is entirely different. Hence, it would be expected of any
resolution professional to keep such requirements in view while
making a motion to the Adjudicating Authority.
29. We have found that the legislature has used the different language in
Section 43 and 45 of the Code because in Section 43, the RP or the
liquidator has to form an opinion whereas in Section 45 the RP or the
liquidator has to examine and then determine that the transaction in
question were undervalued during the relevant period. In the case of Anuj
Jain (Supra) the Hon’ble Supreme Court has also held that specific material
facts are required to be pleaded if a transaction is sought to be brought
under the mischief sought to be remedied by Sections 45/46/47 or Section
66 of the Code. It further said that it is expected of any resolution
professional to keep such requirements in view while making a motion to the
Adjudicating Authoritybut in any case the action could not have been taken
under Section 43 and 45 without there being an application moved by the
RP. In the present case, the CoC was apprised in its 5th meeting that the
forensic audit report found no preferential, undervalued, fraudulent or
wrongful trading transactions nor it has found any related party preferential
or fraudulent transaction whatsoever, therefore, only on the basis that the
trademark was hypothecated for a bigger amount and has been assigned for
lesser amount would not be a criteria for the purpose of declaring it to be
undervalued transaction without there being sufficient material before the

31
Adjudicating Authority to pass such an order, therefore, in our considered
opinion, the finding recorded in this regard is not in accordance with law
and thus reversed.
30. In view of the aforesaid discussions, the present appeal is hereby
allowed and the impugned order is set aside. No costs.
[Justice Rakesh Kumar Jain]

Member (Judicial)
[Mr. Naresh Salecha]

Member (Technical)
New Delhi
25th January, 2024
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Case Citation: (2024) ibclaw.

NATIONAL COMPANY LAW APPELLATE TRIBUNAL PRINCIPAL BENCH,

This appeal is preferred by Gloster Cables Limited. The brief history of

the Appellant is that Crest Cables Private Limited, a Private Limited

provisions of the Companies Act 1956. It was incorporated by the Modi

Secunderabad. It was incorporated to manufacture cables and commenced

Comp. App (AT) (Ins) No. 1343 of 2019

changed to Gloster Cables Limited in the year 2004. The shareholding

2. Fort Gloster Industries Limited (Corporate Debtor) is Respondent No.

in the business of manufacturing of power cables. Respondent No. 1 is the

owner of the trademark viz "GLOSTER" bearing Trademark Registration No'

690772 in class 9 (hereinafter referred as the ‘Trademark')

3 Gloster Limited (Respondent No. 2) was incorporated on 02.01.1923

and is in the business of Jute Products. Bijay Murmuria, is the Resolution

Professional (Respondent No. 3) of Respondent No. 1.

4. Briefly put, a former employee (Jayant Panja),of the Corporate Debtor,

filed an application bearing CP (IB) 61/KB/2018 under Section 9 of the

on 09.08.2018. Initially, Manish Jain was appointed as the Interim

present IRP (Respondent No. 3) on 04.12.2018.

5. Respondent No. 3 (RP) filed an application under Section 30(6) of the

Code seeking approval of the resolution plan of the Corporate Debtor

submitted by Respondent No. 2, duly approved by the CoC by vote share of

73.21% of the members of the CoC.

Comp. App (AT) (Ins) No. 1343 of 2019

6. While this application was pending, the Appellant filed an application

CA (IB) 713/KB/2019 before the Adjudicating Authority (National Company

“a) To pass an order thereby allowing the present Applicant to

b) To pass an order thereby directing that any Resolution Plan if

c) To pass an order clarifying that, in approving the CIRP, no

d) To pass an ex-parte interim order in terms of prayer (a), (b)

e) Any other relief or reliefs may be granted as this Hon’ble

7. The aforesaid application was dismissed by the Adjudicating Authority

reference, directed the Corporate Debtor not to disposeof any- fixed or

Comp. App (AT) (Ins) No. 1343 of 2019

by the Appellant on the basis of the assignment deed dated 20.09.2017 is in

violation of Section 43 and 46 of the Code and thirdly, the registration of

trade mark in the name of the Appellant is invalid in view of Section 14 of

certificate was issued on 27.09.2018. All three objections have been

maintained by the Adjudicating Authority holding that all deeds executed

transaction relied upon by the Appellant is undervalued transaction and is

after the imposition of moratorium is hit by Section 14 of the Code.

been filed under Section 61 of the Code by the Appellant.

submitted that a technical collaboration agreement was entered into between

the Appellant and the Corporate Debtor on 02.05.1995 by which the

2% of ex-works prices of the products sold or leased.

9. During the subsistence of the agreement dated 02.05.1995, the

Act, 1985 (SICA) whereinafter Board of Industrial and Financial

Comp. App (AT) (Ins) No. 1343 of 2019

expired by efflux of time, therefore, another technical collaboration

further period of five years against the payment of 1% royalty. It is alleged

Corporate Debtor held a shareholding of 16.7% in the Appellant Company

Cables Limited. It is further alleged that the Appellant entered into a

trademark agreement on 29.07.2004 with the Corporate Debtor for a long-

for a period of 33 years which was to be renewed automatically. It is further

submitted that the Appellant granted a loan of Rs. 10 Crores to the

Corporate Debtor vide loan agreement dated 10.11.2006 by way of

annum. It is alleged that a sum of Rs. 5,68,05,114/- was disbursed to the

Corporate Debtor by the Appellant under the loan agreement dated

10.11.2006 from November, 2006 to October, 2009. It is also submitted that