As per case facts, appellants, who were post-CIRP creditors, challenged the shifting of the registered office of Hindusthan Glass and Industries Limited from West Bengal to Mumbai. A resolution plan ...
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IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
BEFORE :-
THE HON’BLE JUSTICE SHAMPA SARKAR
&
THE HON’BLE JUSTICE AJAY KUMAR GUPTA
M.A.T 444 of 2026
with
CAN 1 of 2026, CAN 2 of 2026,
CAN 3 of 2026 and CAN 4 of 2026
M/s. Jeel Kandla Service & Anr.
vs.
Union of India and Ors.
For the Appellants : Mr. Anindya Kumar Mitra, Sr. Adv.
Mr. Saptangshu Basu, Sr. Adv.
Mr. Anirban Ray, Sr. Adv.
Mr. Biswaroop Bhattacharya, Adv.
Mr. Arik Banerjee, Adv.
Mr. Tanish Ganeriwala, Adv.
Mr. Aman Agarwal, Adv.
Mr. Durbadal Sen, Adv.
For the Respondent Nos. 1 to 3 : Mr. Dhiraj Trivedi, D.S.G.,
Mr. Subhankar Chakraborty, Adv.
Mr. Anindya Sundar Das, Adv.
Ms. Sayani Gupta, Adv.
Mr. Atindra Rai, Adv.
For the Respondent No. 4 : Mr. Sudipto Sarkar, Sr. Adv.,
Mr. Rishav Banerjee, Adv.
Ms. Pooja Chakrabarti, Adv.
Mr. Kiran Sharma, Adv.
Ms. A. Bhattacharyya, Adv.
For the Respondent No. 5 : Mr. Krishnaraj Thaker, Sr. Adv.
Ms. Pooja Chakrabarti, Adv.
Mr. Kiran Sharma, Adv.
Ms. Arti Bhattacharyya, Adv.
Ms. Jiya Bose, Adv.
Ms. Shreya Goenka, Adv.
Ms. Surabhi Mehta, Adv.
For the intervener, HNG : Mr. Sakya Sen, Sr. Adv.
Karmachari Union and HNG Mr. Jishnu Choudhury, Sr. Adv.
Mazdoor Union Ms. Tapashya Bhattacharya, Adv.
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For the intervener, HNG : Mr. Abhrajit Mitra, Sr. Adv.
Thozilalar Nala Sangam Mr. Shadma Manzar, Adv.
Judgment reserved on : 30.03.2026
Judgment pronounced on : 15.05.2026
Judgment uploaded on : 15.05.2026.
Shampa Sarkar, J.
1. CAN 1 of 2026 is an application for stay of operation and /or
implementation of the order dated February 27, 2026 passed in WPA No.
3755 of 2022. Instead of hearing the said application separately, we
proposed to hear out the appeal.
2. CAN 2 of 2026 is an application by H.N.G Karmachari Union for
leave to intervene in the appeal or be added as a party to the appeal.
3. CAN 3 of 2026 is an application by H.N.G Industries Thozilalar Nala
Sangam, a registered trade union with similar prayers as in CAN 2 of
2026.
4. CAN 4 of 2026 is an application by H.N.G Mazdoor Union (INTU C)
also for leave to intervene in the appeal or to be added as a party to the
proceeding.
5. These three applications were filed on 16.03.2026 i.e. towards the
conclusion of the proceedings before us.
6. The appeal arises out of a judgment and order dated February 27,
2026 passed by a learned Single Judge in WPA no. 3755 of 2026. By the
order impugned, the learned Judge dismissed the writ petition, inter alia,
holding that the order passed by the Regional Director, Eastern Region,
Ministry of Corporate Affairs was not in violation of the second proviso to
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sub-rule (9) of Rule 30 of the Companies (Incorporation) Rules, 2014
(hereinafter referred to as the said Rules).
7. Mr. Aninyda Kumar Mitra, learned senior advocate appearing on
behalf of the appellants urged that, the respondent no. 5, Hindusthan
Glass and Industries Limited (in short HNGIL) went into CIRP on 21
st
October, 2021. The appellants claimed to be post-CIRP creditors of HNGIL
whose dues were paid in preference under section 5(B) of the Insolvency
and Bankruptcy Code, 2016 (in short ‘IBC’).
8. The facts pleaded in the writ petition were that, on the allegation
that, post the order of admission in CIRP, the payment for the
transportation services provided to HNGIL, was not made by the
Resolution Professional (RP). The appellant as a Micro Small and Medium
Enterprise (MSME) filed an application for release of the post-CIRP dues.
The National Company Law Tribunal (NCLT) passed an order on the
admission of the RP to pay 75% of the balance dues within 60 days. The
claim of the appellants was allowed to the extent of 44 lakhs, but the
prayer of the appellants for interest under section 16 of the Micro, Small
and Medium Enterprises Development Act, 2006 (hereinafter referred to
as the ‘MSMED Act’) was disallowed. The appellants preferred an appeal
before the National Company Law Appellate Tribunal (NCLAT). In the
meantime, Independent Sugar Corporation Limited, the respondent no. 4
gave a resolution plan to revive HNGIL, which was approved by the NCLT
on August 14, 2025. The appellants filed an application for rejection of the
plan before the NCLT being I.V.N. No. 22 of 2025. The application was
rejected and the resolution plan was approved. Being aggrieved, the
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appellants preferred an appeal before NCLAT from the order of approval of
the resolution plan and rejection of I.V.N No. 22 of 2025. Several other
parties also preferred appeals from the approval of the resolution plan and
24 appeals were pending before the NCLAT on October 28, 2025. The
respondent no. 4 filed an application before the Regional Director, Eastern
Region, seeking permission to shift the registered office of the respondent
No. 5 to Mumbai. The Regional Director informed the respondent No. 4
that the prayer for shifting of the registered office had been kept in
abeyance in view of the pending appeals before the NCLAT. Respondent
no. 4 sought for clarification from the NCLAT that , pendency of the
appeals should not affect the application for change of the registered office
from the State of West Bengal to Maharashtra. NCLAT passed an order
observing that pendency of the appeals should not be a ground for non-
compliance of the statutory provisions by a statutory authority. NCLAT
did not grant the clarification prayed for, but observed that the Regional
Director should decide the application filed by the respondent No. 4, in
accordance with law. By an order dated February 4, 2026 , the Regional
Director allowed shifting of the registered office without complying with
the provisions of law. Mr. Mitra urged that the order passed by the
Regional Director was ex facie contrary to the mandate of the second
proviso to Rule 30(9) of the said Rules. The proviso clearly stipulated that,
shifting of the registered office of a Company after approval of a resolution
plan, could be permitted only when no appeal against the resolution plan
was pending before any court or tribunal. In respect of the resolution plan
of the respondent No. 4, several appeals were pending before the NCLAT.
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The learned Single Judge failed to appreciate that the Regional Director
had wrongly exercised jurisdiction in allowing the shifting of the registered
office of the respondent no. 4 to Mumbai. Such e rroneous exercise of
jurisdiction by the Regional Director ought to have been struck down by
the learned Single Judge. Instead, the same was upheld upon erroneous
appreciation of law. According to Mr. Mitra, the learned Single Judge had
re-written the Rules by concluding that, unless there was an order of stay
of operation of the resolution plan in the pending appeals before the
NCLAT, the second proviso to Rule 30(9) would not operate as a bar in the
exercise of jurisdiction by the Regional Director, thereby, permitting
shifting of the registered office of the respondent no. 4. It was further
urged that the learned Single Judge committed patent illegality in holding
that, unless prejudice could be demonstrated by the writ petitioners, the
order of the Regional Director should not be interfered with. Prejudice
should not have been a consideration at all, when the appellant
complained of violation of the said Rules which had statutory force.
Learned Senior Advocate further submitted that, the learned Single Judge
failed to appreciate that the pendency of the appeals materially affected
the forum, regulatory supervision and enforcement jurisdiction, which
directly impacted the rights and remedies of stakeholders , including
operational creditors like the appellants. Initially, the Regional Director
had kept the application for shifting of the registered office in abeyance,
on account of pendency of the appeal. Subsequently, such decision was
reversed in wrongful exercise of statutory power. The finding of the
learned Single Judge that the NCLAT had directed the respondent no. 3 to
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consider the pending application for shifting of the registered office of the
corporate debtor, was a mis-interpretation of the order of the NCLAT dated
December 22, 2025.
9. On the issue of locus of the appellants to initiate the writ petition,
Mr. Mitra submitted that the appellants were aggrieved by the order
passed by the Regional Director. The appellants were objectors to the said
application and the appellant No. 1 was a noticee along with 11 others.
The appellants were heard by the Regional Director and their objections
were turned down by the order which was impugned in the writ petition.
The appellants did not have any other efficacious remedy under the law to
challenge the order of the Regional Director. Thus, the writ petition was
maintainable at the instance of the appellants.
10. According to Mr. Mitra, the statutory discretion vested in the
Regional Director ought to have been exercised within the framework of
the said Rules and not in derogation thereof. The Regional Director had
acted in colourable exercise of statutory power. The order of the Regional
Director suffered from jurisdictional error. The learned Single Judge failed
to appreciate the illegality in the order passed by the Regional Director.
11. Mr. Mitra submitted that, the second proviso to Rule 30(9) of the
said Rules, was incorporated by way of an amendment in 2023. The
proviso was introduced specifically to prevent alienation of corporate
jurisdiction during pendency of judicial challenges to resolution plans,
thereby preserving the authority of the appellate forum and courts and
preventing circumvention of judicial scrutiny.
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12. It was submitted that Rule 30(9) of the said Rules operated in
furtherance of the framework of the IBC, thereby ensuring that the
corporate restructuring was subject to judicial supervision until appellate
remedies were exhausted. Referring to Section 31(4) of the IBC, Mr. Mitra
submitted that, after the approval of the resolution plan, the resolution
applicant was required by law to obtain the necessary approvals under
other laws which were in force, within a period of one year from the date
of approval of the resolution plan. Thus, requirement for compliance of the
said Rules was provided in the IBC itself.
13. Reference was made to Section 32 and sub-section 3 of Section 61
of the IBC in support of his contention that, an appeal against an order
approving a resolution plan under Section 31 may be filed on various
grounds, namely:-
(i) The approved resolution plan is in contravention of the provisions
of any law for the time being in force;
(ii) there has been material irregularity in exercise of the powers by
the resolution professional during the corporate insolvency
resolution period;
(iii) the debts owed to operational creditors of the corporate debtor
have not been provided for in the resolution plan in the manner
specified by the Board;
(iv) the insolvency resolution process costs have not been provided
for repayment in priority to all other debts; or
(v) the resolution plan does not comply with any other criteria
specified by the Board.
14. Appeals, inter alia, on the above grounds were pending before the
NCLAT at the instance of various creditors. Reliance was placed on the
decision of the Supreme Court in Satyanarayan Prosad Gooptu vs.
Diana Engineering Company reported in 1955 CWN 509, in support of
the contention that, the resolution plan lost its finality on account of
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pendency of the appeal. Until the appeal was preferred, the resolution
plan was final. Once the appeal was filed, the plan lost its character of
finality. Mr. Mitra submitted that, the intent behind the incorporation of
the second proviso to Rule 30(9) of the said Rules, was to put a restriction
on the power of the central government acting through the Regional
Director, to permit shifting of the registered office of the corporate debtor
at the behest of the successful resolution applicant, during the pendency
of the appeals.
15. Reliance was placed on the decision of Solidaire India Ltd. vs
Fairgrowth Financial Services Ltd. and Ors. reported in (2001) 3 SCC
71, in support of the contention that when there were two special
statutes, the provisions of both should be harmoniously construed .
According to Mr. Mitra, the provisions of the IBC were not in conflict with
the provisions of the Companies Act, 2013 (hereinafter referred to as the
2013 Act) and Rule 30(9) of the said Rules, including the provisos thereto.
There was no inconsistency. Thus, the provision of Section 238 of the IBC
was wrongly pressed into service by the Regional Director and the learned
Single Judge erroneously upheld such decision which was contrary to law.
16. Reliance was placed on the decision of Hardeep Singh vs. State of
Punjab and Ors. reported in (2014) 3 SCC 92, on the proposition that,
when the language of the statute was plain and unambiguous, the court
should give effect to the same and not go behind the express language, so
as to add or subtract any word therefrom. The legislature should be
presumed to have used the words deliberately and consciously for
carrying out the purpose of the statute.
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17. Indus Biotech Private Limited vs Kotak India Venture
(Offshore) Fund (Earlier Known as Kotak India Venture Limited) and
Ors. reported in (2021) 6 SCC 436, was relied upon in support of the
contention that, the proceedings pending before the NCLAT were
proceedings in rem, and rights had been created in favour of creditors of
the corporate debtor. It would have an erga omnes effect. Mr. Mitra prayed
for setting aside of the order of the learned Single Judge and the order of
the Regional Director.
18. Mr. Sudipto Sarkar, learned Senior Advocate appearing on behalf of
the respondent no. 4 submitted that the learned Single Judge did not
commit any error of law. The scope of this intra court appeal was limited.
The exercise of power of judicial review by the writ court was
discretionary. The learned Single Judge was not sitting in appeal over the
decision of the Regional Director. What was required to be considered
was, whether the order of the Regional Director was patently illegal or not.
Prejudice was an important factor for consideration by the learned Single
Judge, while exercising his discretion. Thus, in exercise of such
discretionary power, the court was always required to balance the equities
between the parties and consider whether the order of the Regional
Director was passed in good faith, was reasonable and not shocking to the
conscience of a reasonable man. In this case, the learned Single Judge
rightly applied the doctrine of prejudice to determine whether the decision
of the Regional Director in allowing the shifting of the registered office of
the successful resolution applicant, would cause any apparent harm to
the appellants. The learned Single Judge correctly held that the procedure
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followed by the Regional Director was not unfair. All the parties /
objectors were granted an opportunity to raise their objections. The
registered office was sought to be shifted to Mumbai for administrative
convenience. The appellants were also situated at Mumbai. Moreover, the
Regional Director had sufficiently protected the interest of the creditors
and the workers and had made the shifting of the registered office subject
to the result of the appeals . Thus, no real prejudice could be
demonstrated by the appellants before the writ court. The appellants did
not suffer any disadvantage on account of the order of the Regional
Director. The proceedings before the NCLAT were independent of the order
of the Regional Director and the jurisdiction was reserved to the NCLAT,
to proceed with the appeals independently. He further submitted that
Section 13(5) of the 2013 Act provided that, the central government must
dispose of the application for alteration in the Memorandum relating to
the place of the registered office from one state to another, within a period
of 60 days, and before passing any order, must satisfy itself that the
alteration had the consent of the creditors, debenture holders and other
persons concerned with the Company, or that, sufficient provisions had
been made by the company either for due discharge of all its debts and
obligations or that adequate security had been provided for such
discharge. As a general rule, shifting of the registered office should be
allowed on certain terms and conditions.
19. In this case, adequate security had been provided for due discharge
of debts and obligations of the creditors. Moreover, once the resolution
plan was approved, the respondent no. 4 started on a clean slate.
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Reference was made to Ghyansham Mishra and Sons Pvt. Ltd. vs
Edelweiss Asset Reconstruction Company Ltd. reported in (2021) 9
SCC 657.
20. According to Mr. Sudipta Sarkar, the appellant No. 1 was neither a
creditor of the corporate debtor nor a creditor of the successful resolution
applicant. The entire dues of the appellant No. 1 had been paid in
accordance with the order dated August 14, 2025 passed by the NCLT.
Section 31(1) of the IBC provided that an order approving the resolution
plan shall be binding on all creditors and stakeholders. Moreover, the
NCLAT refused to stay the order of approval of the resolution plan. Until
and unless the said plan was stayed by the NCLAT or set aside in the
appeal, the plan was binding on all creditors. Section 13(4) and 13(5) of
the 2013 Act required that any alteration of the registered office of the
company would require the central g overnment’s satisfaction that the
creditors had given their consent. The appellant No. 1 did not remain a
creditor and could not raise any objection with regard to the shifting of the
registered office. Moreover, even if the appellants were successful before
the NCLAT and any sum was found to be due and payable, the liability of
the payment would not rest upon the corporate debtor or the successful
resolution applicant as had been clearly stated in the order approving the
resolution plan. The plan specifically provided that, any additional claim
that became payable by the resolution applicant should be paid out of
“Upfront Cash”, paid to the secured financial creditors and without any
further liability on the resolution applicant. The resolution plan stood
incorporated as an integral part of the order dated August 14, 2025
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passed by the NCLT, which was binding on the creditors as also upon the
Regional Director. By resisting the shifting of the registered office of the
Company, the appellants were attempting to challenge the implementation
of the resolution plan, which was not permissible in law. Reliance was
placed on the decision of Ayaaubkhan Noorkhan Pathan vs State of
Maharashtra and Ors. reported in (2013) 4 SCC 465 on the proposition
that, only a person aggrieved, whose right and interest had been adversely
affected or jeopardized or who had suffered legal injury could invoke writ
jurisdiction. The existence of a legal right was a pre-condition for invoking
the writ jurisdiction. The appellants could not be treated as persons
aggrieved. It was further submitted that the second proviso could not
operate contrary to the substantive provision. Therefore, when Rule 30(9)
permitted shifting on certain terms and conditions, the second proviso
could not be treated as a bar. The second proviso was permissive in
character and was not to be construed in a restrictive manner. Rather, the
second proviso gave a discretion to the Regional Director to allow shifting
of the registered office and operated as an exception to the first proviso.
21. Referring to the second proviso of sub-rule 9 of Rule 30, Mr. Sarkar
submitted that, the same was an exception to the first proviso and a
discretion was left to the Regional Director to permit shifting, even if an
appeal was pending. The first proviso was a complete bar in view of the
use of the expression “shall not”. The second proviso must be construed
as a permissive provision, inasmuch as, it carved out an exception to the
general rule, by use of the expression “may be allowed”. The complete bar
under the first proviso was relaxed. On this issue reliance was placed on
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the decision of Satnam Singh and Others vs Punjab & Haryana High
Court and Ors. reported in (1997) 3 SCC 353. Prayer was made for
dismissal of the appeal.
22. Mr. Thaker, learned Senior Advocate for the respondent No. 5
argued on the same lines as Mr. Sarkar and submitted that the appellants
did not have any locus to file the writ petition. They were not operational
creditors. Their debt was discharged upon approval of the resolution plan.
The Rules of 2014 were framed by the Ministry of Corporate Affairs vide
notification dated March 31, 2014. The said Rules could not have an
overriding effect over the 2013 Act. Section 13(4) of the 2013 Act dealt
with alternation of the Memorandum, in relation to the shifting of the
place of the registered office from one state to another. The alteration
must be approved by the central government. Under Section 13(5), the
central government was required to dispose of the application within a
period of 60 days and before passing the order, it was to satisfy itself that
the alteration had the consent of the creditors, debenture holders and
other persons concerned with the company. The appellants were not
creditors. The provisions of Section 13 had not been amended, upon
promulgation of the IBC. Therefore, the exercise of jurisdiction by the
Regional Director under the Act of 2013, which was vested by a legislative
mandate, could not be taken away by the Ministry of Corporate Affairs
upon incorporation of the second proviso to Rule 30(9) of the said Rules.
Thus, the second proviso should be read harmoniously with Section 13 of
the 2013 Act, to mean that a discretion could be exercised by the Regional
Director even when an appeal from the Resolution plan was pending. In
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the present case, discretion was exercised by the Regional Director. He
satisfied himself that no prejudice would be suffered by the appellants.
Rule 30(9) and the proviso thereunder, were subordinate to the 2013 Act.
Rule 30(8) of the said Rules provided that, in the event an objection was
received by the central government with regard to shifting of the place of
the registered office of the company from one state to another and no
consensus was reached at the hearings, the company was to file an
affidavit specifying the manner in which the objection was to be resolved
within a definite time frame, duly reserving the original jurisdiction to the
objector for pursing its legal remedies even after the registered office was
shifted. In the instant case, the legal remedy of the appellants was before
the NCLAT, and the NCLAT always reserved the jurisdiction to dispose of
the matter. Such jurisdiction did not change, although the shifting was
allowed. No other proceeding had been initiated by the appellants, save
and except what was pending before the NCLAT.
23. Rule 30(8) did not give any veto power to any stakeholder to oppose
shifting of the registered office. Reference was made to paragraph 17(iii) of
the order to urge that, the Regional Director had clearly stipulated that
there would be no jurisdictional change in the legal proceedings pending
against the company on the date of the order. A purported creditor did not
have any locus to raise any objection for alleged contravention of Rule
30(9) inasmuch as, Rule 30(9) was triggered after due compliance of Rule
30 Sub Rules (1) to (8). In this case, the objections were considered and
the procedure under Rule 30(8) was followed. Even if the order of approval
of the resolution plan was set aside by the NCLAT, it would result in
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resumption of the original CIRP proceedings before the NCLT Calcutta
Bench and such proceedings would remain unaffected by the shifting of
the registered office from Kolkata to Mumbai. If the legislature had
thought it prudent, it would have inserted a specific provision in the IBC
and / or in the CIRP regulations, prohibiting shifting of the registered
office during the pendency of appeals from the order of approval of the
resolution plan. The general power conferred upon the central government
to alter the Memorandum of the company under section 13 (4) of the 2013
Act could not be taken away by a proviso to a rule.
24. He next submitted that the remedy provided under Article 226 of
the Constitution of India was a discretionary remedy. The learned Single
Judge had rightly exercised discretion in refusing the reliefs. The learned
Single Judge was of the view that no prejudice would be caused to the
appellants, as the appellants were also stationed in Mumbai. The learned
Judge observed that the Regional Director had protected and safeguarded
the rights of the workers, the creditors etc. and made the shifting subject
to the result of the pending appeal. The writ court was not a court of
appeal. It could exercise powers of judicial review only to the limited
extent in ensuring fair treatment. Judicial review could not be extended to
examine the correctness of the decision. Unless the appellants could
demonstrate substantial injustice, a reasoned decision of a statutory
authority, should not be interfered with by this Bench. The learned Single
Judge, upon weighing the facts and circumstances and by applying the
law, rightly held that no injustice had been caused to the appellants.
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Thus, the decision of the Regional Director should not be set aside. The
Regional Director had discharged his statutory function.
25. Mr. Thaker further urged that, t he appellants were erstwhile
operational creditors whose claims had already crystalized and
extinguished under the approved resolution plan. They were attempting to
frustrate the implementation of the resolution plan.
26. Reliance was placed on the decision o f All Odisha Lawyers
Association vs The Odisha State Bar Council and Ors. reported in
MANU/OR/0153/2020 and West Bengal Central School Service
Commission and Ors. vs Abdul Halim and Ors. reported in (2019) 18
SCC 39, in support of his contention that, the High Court exercised extra-
ordinary jurisdiction under Article 226 of the Constitution of India for
enforcement of a fundamental right or some other legal right. Thus, the
Writ Court would necessarily have to address the question whether there
was a breach of any fundamental or legal right or whether there was any
lapse in the performance of the duty of the authority. A high prerogative
writ could not be issued on the mere asking. The High Court could not act
as a court of appeal over administrative decisions. The High Court could
only examine the decision making process and not the decis ion itself.
Unless the decision was vitiated by error apparent on the face of record or
the order was passed beyond jurisdiction, the order could not be
interfered with by the High Court. The Court would have to see whether a
reasonable person could have taken the view that was taken by the
Regional Director or whether the decision led to manifest injustice. Thus,
the learned Single Judge rightly dismissed the writ petition. Reliance was
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placed on Ayaaubkhan Noorkhan Pathan (supra) on the proposition
that the appellant did not have any locus to raise a grievance whatsoever.
Therefore, without a judicially enforceable right available for enforcement,
the writ petition could not have been filed. The writ court had the power to
enforce the performance of a statutory duty by a public body only upon
the court being satisfied that the person aggrieved had a legal right to
insist on such performance. In this case, the appellants ceased to be
creditors and as such did not have any locus to approach the writ court.
Reliance was placed on the decision of Ghanshyam Mishra (supra). It
was submitted that the goal of the resolution plan was to give the
company a fresh start, on a clean slate. All the claims against the
corporate debtor stood extinguished. Such theory had been recognized by
the Hon’ble Supreme Court in various decisions from time to time. The
resolution plan was a binding document. Commercial necessity required
the company to streamline its operation, for which the shifting of the
registered office was absolutely necessary. Accordingly, the shifting of the
registered office was a part of a new life induced to the company and the
relevant proviso could not override the provision of the 2013 Act.
27. Mr. D. Trivedi, learned Deputy Solicitor General and senior
Advocate appeared on behalf of the Union of India. The learned Advocate
supported the decision of the Regional Director dated February 4, 2026
and primarily adopted the submissions made by Mr. Sarkar and Mr.
Thaker. Mr. Trivedi urged that this Bench should not interfere with the
order of the learned Single Judge, in an intra court appeal. The order of
the learned Single Judge, as also the order of the Regional Director, were
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reasonable and rational. He placed the order of the Regional Director in
details, and submitted that the Regional Director had protected the
interest of the stakeholders. The Regional Director took into consideration
the provisions of the IBC, which mandated revival of the company. The
provisions of IBC, including implementation of the resolution plan would
take precedence over the procedural bar under the second proviso to Rule
30(9) of the 2014 Rules. Learned Advocate submitted that, the Regional
Director rightly considered the legal effect of Section 238 of the IBC to be a
legal bridge, in order to grant the prayer for shifting of the registered
office, especially when public interest tilted in favour of the successful
resolution applicant and denial would impede the new management’s
efforts to streamline the operation of the company. The company was a
going concern. Not allowing shifting of the registered office until the
management was taken over by the reconstituted Board, was a part of the
plan, but once the company had been taken over by the reconstituted
Board and such act of taking over had been approved, the shifting of the
office from the State of West Bengal to the State of Maharashtra was
rightly allowed by the Regional Director with certain protective terms and
conditions. The Regional Director required the respondent no. 4 to provide
an undertaking on the following conditions:-
“17. As the company is a going concern and not shifting of the
registered office till the management is taken over by the re-
constituted board was the part of the plan and how the company
has been taken over by the Reconstituted Board and as such taking
in consideration of all the submission and in the interest of justice,
the shifting of registered office from the State of West Bengal to the
State of Maharashtra is allowed which shall be subject to outcome
of all the Company appeals pending before Hon’ble NCLAT in
respect of the resolution plan in the present matter. Further the
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company shall be required to give the following undertaking in the
office of this Directorate:-
(i) Company to place copy of this order and bring it to the
notice of Hon’ble NCLAT in Company Appeal (AT)
(Insolvency) No. 1340 of 2025 & other connected matters
and to comply with any further directions (if any) a may be
issued by Hon’ble NCLAT in the matter.
(ii) That the shifting of registered office is being carried out for
operationally efficiency and value maximization.
(iii) That no employee shall be retrenched as a consequence of
shifting of the registered office of the company and that
there will be no jurisdictional change in the legal
proceedings pending if any, against the company on the
date of this order.
(iv) That shifting of registered office does not result in any
deviation from or non-compliance with the approved
resolution plan.”
28. Thereafter, Mr. Trivedi submitted that the learned Single Judge
rightly dismissed the writ petition upon holding that the order of the
Regional Director did not suffer from material irregularity. The order was
not shocking to the conscience. A reasonable man would consider the
order to be a possible view as the balance of convenience and
inconvenience tilted in favour of allowing the shifting.
29. During the continuation of the appeal, applications for leave to be
added as party/respondents in the appeal or in the alternative to be
permitted to make submissions by intervening in the proceeding , were
moved by different groups of workers union. Such prayer had also been
made orally on March 12, 2026. This Bench observed that, the interveners
would not be heard, as they were not parties to the writ proceeding. The
order of the learned Single Judge did not indicate that their submissions
had been either recorded or considered. Subsequently, the interveners
filed three applications. They supported the case made out by the
respondents Nos. 4 and 5. However, as the applications were filed, we
20
heard the respective senior Advocates who made elaborate submissions
and also filed their written notes of arguments.
30. Mr. Sakya Sen, senior learned Advocate appeared on behalf of
H.N.G Karmachari Union and H.N.G Mazdur Union. Mr. Sen submitted
that the prayer for stay of operation/implementation of the resolution plan
was refused by the NCLAT. The interveners were concerned with the
outcome of the CIRP of HNGIL and in the full and timely implementation
of the resolution plan. The implementation of the resolution plan would
ensure continuity of operation, protection of employment, preservation of
the service conditions of the workmen. The members of the interveners
were directly engaged in the activities of HNGIL and were dependent on
the resolution plan for their livelihood, job security etc. Any disturbance
in the execution of the resolution plan would have serious consequences
on industrial peace, workforce stability and continuous functioning of the
corporate debtor. Reliance was placed on paragraph 70, 78 and 104 of the
order of approval of the plan which are quoted below :-
“70. The payment of ‘CIRP Costs’ will be ‘at actual’ and the CIRP
costs shall be paid out of the cash flow of the corporate debtor and in
the event the cash flow of the corporate debtor is insufficient then the
outstanding CIRP Costs shall be paid by the resolution applicant from
the upfront cash. The upfront cash shall be utilized for the payment of
outstanding CIRP costs in priority to the payment of other debts of the
corporate debtor. Furthermore, if on the Trigger date, outstanding
CIRP cost remains unpaid as on the Trigger Date, the payment to the
Financial Creditors shall stand adjusted accordingly.
78. Any additional claim that becomes payable by the Resolution
Applicant, the same shall be paid out of the Upfront Cash and
without any further liability on the Resolution Applicant. The
21
Creditors of such claims shall be entitled to receive only from the
amounts agreed to be paid under the plan as per the relevant
category such creditors fall under as per the plan and the amounts
payable to that category of creditors shall stand adjusted accordingly
proportionately.
104. The Resolution Plan shall form part of this Order and shall be
read along with this order for implementation. The Resolution Plan
thus approved shall be binding on the corporate debtor and its
employees, members, creditors, including the Central Government,
any State Government, or any local authority in terms of Section 31 of
the I&B Code, so that revival of the Corporate Debtor Company shall
come into force with immediate effect without any delay.”
31. Further reliance was placed on paragraphs 9.5, 9.6 and 9.8 of the
order approving the plan. It was submitted that, the appellants were not
operational creditors and their dues had been paid. An appeal on the
question of payment of interest at the rate claimed by the appellants, was
pending before the NCLAT. The NCLT refused such interest at the rate
claimed. The appellants had already been paid under the mechanism
provided in the IBC, as also, in terms of the resolution plan. No amount of
debt was payable by the company to the appel lants. As the appellants
were not operational creditors, the question of raising any objection before
the Regional Director did not arise and the appellants did not have any
locus to file the writ petition as they could not be aggrieved by the order of
the Regional Director. If they did not have the locus to object to the prayer
of shifting, they also did not have any locus to challenge the order of the
Regional Director before the writ court. He further submitted that, Section
13(5) of the 2013 Act, clearly provided that the central government was
only required to consider the objections of creditors, debenture holders
22
and workers, but the appellants did not fit into any of those categories
and as such, their objections to the decision of the Regional Director were
misplaced. The objections of the appellants should not have been
considered by the Regional Director at all. The Regional Director rightly
disregarded their objections by, inter alia, holding that precedence should
be given to implementation of the resolution plan, for revival of the
company for greater public interest and also for the benefit of the workers
and stakeholders. Once the Regional Director recorded his satisfaction
that the statutory procedure prescribed under the 2013 Act and the
Companies (Incorporation) Rules 2014 had been duly complied with
before grant of approval to the shifting of the registered office, nothing
further remained to be decided. He submitted that in the decision of
Ghanshyam Mishra (supra), the Hon’ble Apex Court held that, a
successful resolution applicant must be enabled to commence the
business of the corporate debtor on a clean slate and the past claims
which were not incorporated in the resolution plan, stood extinguished
upon its approval. Thus, the Regional Director rightly held that the
provisions of the IBC would prevail over any procedural law and the
Rules. Prime importance should be given to the revival of the company. He
submitted that the writ petition was filed only to obstruct the
implementation of a valid and operative resolution plan.
32. Mr. Abhrajit Mitra, learned senior Advocate appeared on behalf of
the interveners, H.N.G Industries Thozilalar Nala Sangam. He submitted
that, the workers who sought to intervene were directly and materially
affected by the CIRP of HINGL and by the implementation of the resolution
23
plan, which was approved by the NCLT. Their livelihood, employment, job
security, continuity of service, benefits of the workmen were contingent
upon the unimpeded and complete imp lementation of the approved plan.
The revival of the corporate debtor, which was a going concern was
therefore a matter of immediate concern for the workmen. The right to
participate in the proceedings before the Regional Director was therefore,
confined to persons who qualified as creditors, debenture holders or other
persons concerned with the Company at the material time. The appellants
could not claim to be operational creditors of the corporate debtor and
assert that they had a right to object before the Regional Director. By
operation of section 31 of the IBC, the claims of all creditors including
operational creditors had crystalized and were dealt with in accordance
with the terms of the approved plan. No creditor retained any claim
against the corporate debtor beyond what the resolution plan approved.
Paragraph 70 of the approval order was relied upon in this regard. The
appellants having participated in the CIRP and having been bound by the
outcome of the resolution plan upon its approval , did not have any
residual or continuing status as creditors or corporate debtors. Paragraph
9.6 of the approval order was further referred to, which stated that no
proceedings by any person shall be initiated or entertained by any court of
law, whereby, the resolution applicant’s liability under the obligations and
/ or resolution plan stood increased or the resolution applicant was
required to contribute any amount over and above the payment outlined
in the resolution plan. Ghanshyam Mishra (supra) was relied upon in
support of the contention that all claims not included in the plan stood
24
extinguished and no creditor could initiate or continue any proceedings in
respect of such extinguished claims. The entire basis of the challenge to
the order passed by the Regional Director was on a false premise that the
appellants continued to be successful creditors. Such proposition was not
supported by law. Section 60(5) of the IBC provided that notwithstanding
anything to the contrary contained in any other law, the NCLT would have
jurisdiction to entertain and dispose of any application or proceeding by
or against the corporate debtor or any claim made by or against the
corporate debtor. The appellants could not have filed a writ petition
challenging the order of the Regional Director. Moreover, as the appeals
were already pending before the NCLAT, the appellants could also
approach the NCLAT instead of filing a writ petition. Thus, in either case,
the writ petition was not maintainable. Reliance was placed on the
following decisions:-
i. Tata Power Western Odisha Distribution Limited and Ors.
vs. Jagannath Sponge Private Limited, Director reported in
(2023) SCC Online SC 1402.
ii. Paschimanchal Vidyut Vitran Nigam Ltd. vs. Raman Ispat
Private Limited and Ors. reported in 2023:INSC:625.
iii. Embassy Property Developments Private Limited vs. State of
Karnataka and Ors. reported in (2020) 13 SCC 308.
33. According to learned senior Advocate, Section 238 of the IBC
provided that the provisions of the IBC would override any other law for
the time being in force. Once the resolution plan was approved by the
NCLT, it became binding upon the corporate debtor and upon all the
stakeholders, including the creditors, employees, claimants and other
persons. Although, the notice of the appeal was issued, the NCLAT did not
find any reason to stay the order. The NCLT approved the resolution plan,
25
as such, the resolution plan continued to r emain operative and
enforceable in its entirety. The observation made by the NCLAT in its
order dated February 26, 2025, would clearly indicate that the appeals
could not be treated as a reason for non-compliance of the statutory
requirements applicable to the company. The observations also clearly
recorded that the resolution plan could be implemented and would
continue to operate, notwithstanding the pendency of the appeals. The
objective of the IBC was to revive and rehabilitate the corporate debtor as
a going concern. Operational and restructuring measures for effective
implementation of the resolution plan must be permitted, unless expressly
prohibited by law. In the case in hand, there was no express prohibition.
34. Considered the submissions of the parties and the reasons assigned
by the learned Single Judge in the order impugned. We find that the
learned Judge erroneously imported the overriding effect of the IBC in the
facts of this case and erred in holding that the resolution plan should be
given primacy over the second proviso to Rule 30(9) of the said Rules.
There is no inconsistency between the provisions of the IBC and the 2014
Rules, insofar as, the issue before the writ court was concerned. The
application for shifting the registered office, was filed under Section 13(4)
of the 2013 Act. Sections 13(4) of the 2013 Act provides for alteration in
the Memorandum relating to change in the place of the registered office of
a Company from one state to another. The IBC does not contain any
similar provision. Such alteration and shifting cannot be permitted unless
the central government approves the same on an application being filed,
in such form and manner as may be p rescribed. Rule 30 of the 2014
26
Rules prescribes the mode and manner in which an appl ication under
Section 13(4) of the 2013 Act should be dealt with.
35. The Rules of 2014 do not override Section 13(4), but lay down the
procedure to be followed in exercise of power under Section 13(4) of the
2013 Act, by the Regional Director. The second proviso to Rule 30(9) of the
said Rules was incorporated by an amendment of 2023.
36. Section 13(4) of the 2013 Act is quoted below:-
“13(4) The alteration of the memorandum relating to the place of
the registered office from one State to another shall not have any
effect unless it is approved by the Central Government on an
application in such form and manner as may be prescribed.”
37. Section 238 of IBC is quoted below:-
“238. Provisions of this code to override other laws:-
The 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.”
38. Sub-section 4 of Section 13 of the 2013 Act provides that, alteration
in the Memorandum relating to shifting of the registered office from one
state to another, shall not have any effect unless it is approved by the
central government on an application, in such form and manner as may
be prescribed. The central government is required to dispose of the
application within a period of 60 days. Before passing such order, the
central government may satisfy itself that the alteration had the consent
of the creditors, debenture holders and other persons concerned with the
company or that sufficient provisions had been made by the company
either for due discharge of its debts or that adequate security had been
provided for such discharge. The power is to be exercised by a Regional
27
Director on behalf of the central government. The 2014 Rules was
promulgated by the Ministry of Corporate Affairs on March 31, 2014 in
exercise of powers conferred under various Sections of the 2013 Act,
including Section 13(3) and (4). Thus, the substantive law under Section
13(4) was followed by the Rules. Rule 30 lays down the procedure to be
followed in allowing shifting of the registered office from one state to
another or from one state to a Union Territory. Rule 30 is quoted below :-
“30. Shifting of Registered Office from one State or Union
Territory to another State.-
(1) An application under sub-section (4) of section 13, for the
purpose of seeking approval for alteration of memorandum with
regard to the change of place of the registered office from one
State Government or Union territory to another, shall be filed
with the Central Government in Form No. INC.23 along with
the fee and shall be accompanied by the[following details and
documents], namely: —
(a) a copy of Memorandum of Association, with proposed
alterations;
(b) a copy of the minutes of the general meeting at which the
resolution authorising such alteration was passed,
giving details of the number of votes cast in favour or against
the resolution;
(c) a copy of Board Resolution or Power of Attorney or the
executed Vakalatnama, as the case may be.
(2) There shall be [particulars of], a list of creditors and
debenture holders, drawn up to the latest practicable date
preceding the date of filing of application by not more than one
month, setting forth the following [details in the application],
namely:-
(a) the names and address of every creditor and debenture
holder of the company;
(b) the nature and respective amounts due to them in respect
of debts, claims or liabilities:
28
Provided that the list of creditors and debenture holders,
accompanied by declaration signed by the Company
Secretary of the company, if any, and not less than two
directors of the company, one of whom shall be a managing
director, where there is one, stating that
(i) they have made a full enquiry into the affairs of the company
and, having done so, have concluded that the list of creditors
are correct, and that the estimated value as given in the list of
the debts or claims payable on a contingency or not
ascertained are proper estimates of the values of such debts
and claims and that there are no other debts of or claims
against the company to their knowledge, and
(ii) no employee shall be retrenched as a c onsequence of
shifting of the registered office from one state to another
state and also there shall be an application filed by the
company to the Chief Secretary of the concerned State
Government or the Union territory.
(3) A duly authenticated copy of the list of creditors shall be
kept at the registered office of the company and any
person desirous of inspecting the same may, at any time during
the ordinary hours of business, inspect and take extracts
from the same on payment of a sum not exceeding ten rupees
per page to the company.
(4) There shall also be attached to the application a copy of the
acknowledgment of service of a copy of the application with
complete annexures to the [**] Chief Secretary of the State
Government or Union territory where the registered office is
situated at the time of filing the application.
[Provided that the applicant need not to submit separate copy
of application with the Registrar and an intimation of filing of
application in Form no. INC-23 with the Regional Director shall
be shared with the Registrar through MCA system.]
(5) The company shall, not more than thirty days before the
date of filing the application in Form No. INC.23 –
(a) advertise in the Form No. INC.26 in the vernacular
newspaper in the principal vernacular language in the district
and in English language in an English newspaper
78
[with wide
circulation] in the State in which the registered office of the
company is situated:
Provided that a copy of advertisement shall be served on the
Central Government immediately on its publication.
29
(b) serve, by registered post with acknowledgement due,
individual notice, to the effect set out in clause (a) on
each debenture-holder and creditor of the company; and
(c) serve, by registered post with acknowledgement due, a
notice together with the copy of the application to the Registrar
and to the Securities and Exchange Board of India, in the case
of listed companies and to the regulatory body, if the company
is regulated under any special Act or law for the time being in
force.
(6) There shall be attached to the application a duly
authenticated copy of the advertisement and notices issued
under sub-rule (5), a copy each of the objection received by the
applicant, and tabulated details of responses along with
the counter-response from the company received either in the
electronic mode or in physical mode in response to
the advertisements and notices issued under sub-rule (5).
(7) Where no objection has been received from any person in
response to the advertisement or notice under sub-rule (5) or
otherwise, the application may be put up for orders without
hearing and the order either approving or rejecting
the application shall be passed within fifteen days of the receipt
of the application.
(8) Where an objection has been received,
(i) the Central Government shall hold a hearing or hearings, as
required and direct the company to file an affidavit to record
the consensus reached at the hearing, upon executing which,
the Central Government shall pass an order approving the
shifting, within sixty days of filing the application.
(ii) where no consensus is reached at the hearings the company
shall file an affidavit specifying the manner in which objection
is to be resolved within a definite time frame, duly reserving the
original jurisdiction to the objector for pursuing its legal
remedies, even after the registered office is shifted, upon
execution of which the Central Government shall pass an order
confirming or rejecting the alteration within sixty days of the
filing of application.
(9) The order passed by the Central Government confirming the
alteration may be on such terms and conditions, if any, as it
thinks fit,[***]:
Provided that the shifting of registered office shall not be
allowed if any inquiry, inspection or investigation has
30
been initiated against the company or any prosecution is
pending against the company under the Act.
[Provided further that where the management of the company
has been taken over by new management under a resolution
plan approved under section 31 of the Insolvency Bankruptcy
Code, 2016 (31 of 2016) and no appeal against the resolution
plan is pending in any Court or Tribunal and no inquiry,
inspection, investigation is pending or initiated after the
approval of the said resolution plan, the shifting of the
registered office may be allowed.]
(10) On completion of such inquiry, inspection or investigation
as a consequence of which no prosecution is envisaged or no
prosecution is pending, shifting of registered office shall be
allowed.]”
39. The sub-rules relevant to the context are dealt with hereafter. Sub-
rule 7 provides that, when no objection is received in response to the
advertisement or otherwise, the application may be put up for orders
without hearing and the order either approving or rejecting the application
shall be passed within 15 days of receipt of the application.
40. Sub-rule 8 deals with the circumstance when objections are
received. It provides that the central government shall hold a hearing as
required and direct the company to file an affidavit to record the
consensus reached at the hearing upon executing which, the central
government shall pass order approving the shifting within 60 days of filing
of the application.
41. Sub-clause (ii) of sub-rule 8 provides that when no consensus is
reached at the meeting, the company shall file an affidavit specifying the
manner in which the objection is to be resolved within a definite time
frame, duly reserving the original jurisdiction to the objector to pursue his
legal remedies even after the registered office was shifted, upon execution
31
of which, the central government shall pass an order either confirming or
rejecting the alteration within 60 days of the filing of the application.
42. Sub-rule 9 provides that the order passed by the central
government confirming the alteration may be on such terms and
conditions as it thinks fit. However, two provisos have been incorporated
in sub-rule 9 which operate as restrictions. The second restriction/proviso
was incorporated in 2023. Under the first proviso, the shifting of the
registered office shall not be allowed if any inquiry, inspection or
investigation had been initiated against the company or any prosecution
is pending against the company under the 2013 Act. The second proviso
states that in cases where the management of the company had been
taken over by the new management upon a resolution plan being
approved under Section 31 of the IBC and no appeal against a resolution
plan is pending in any court or tribunal and no inquiry, inspection,
investigation is pending or had been initiated after the approval of the said
resolution plan, the shifting of the registered office may be allowed. Thus,
in a case where a successful resolution applicant takes over the
management of the corporate debtor, the Regional Director may exercise
his discretion and allow shifting, provided no appeal is pending from the
order of approval of the resolution plan or no inquiry, inspection,
investigation is pending or has been initiated after approval of the plan. In
this case ‘and’ has to be read as ‘or’. ‘And’ is disjunction. Two different
situations have been contemplated under the said proviso and even if one
of the two exists, the application of the successful resolution applicant for
shifting of the registered office of the corporate debtor should not be
32
permitted. The proviso should be strictly construed. The proviso cannot be
diluted by giving it an interpretation which is not in alignment with the
legislative intent.
43. The application has to be approved by the central government in the
form and manner as may be prescribed. In this context, prescribed means
prescribed by rules. The relevant rules laying down the mode and manner
in which the Regional Director should proceed has been provided in the
2014 Rules. The Rules were framed in exercise of powers under different
provisions of the 2013 Act including sub-sections 3, 4 and 5 of Section 13
of the 2013 Act. The source of the power of the Ministry of Corporate
Affairs to promulgate the 2014 Rules, is the 2013 Act. Rule 30 of the 2014
Rules emanates from sub-sections 3, 4 of Section 13, which deal with
shifting of a registered office of a company from one state to another. The
provisos to Rule 30(9) are not in derogation to the substantive provision of
law under section 13(4) of the 2013 Act.
44. The second proviso to Rule 30(9) was inserted later, to incorporate a
provision as to the treatment of an application for shifting of the registered
office from one state to another, when the management of a company had
been taken over by the new management, upon a resolution plan being
approved under Section 31 of the IBC. The Rules provide that such
shifting may be allowed only when no appeal against a resolution plan is
pending before any court or tribunal or no inquiry, inspection and
investigation is pending or initiated after the approval of the said
resolution plan. If either of the situations exist, the shifting of a registered
office may not be allowed. Under the second proviso, the second ‘and’ has
33
to be read as ‘or’ because the embargo exists in two classes of situations.
One situation is, when no appeal against the resolution plan is pending in
any court or tribunal and the second situation is, when no inquiry,
inspection, investigation is pending or has been initiated after the said
approval of the resolution plan. The rationale in incorporating the said
proviso is fairly clear. If an appeal against the Resolution plan is pending,
the very foundation of the new management's control is under challenge.
Permitting interstate shifting during that period will complicate
jurisdiction, regulatory supervision, creditors’ remedies and or even
reversal of the plan. Therefore, in a literal interpretation of the proviso,
pendency of an appeal before the NCLAT or the Supreme Court will bar
shifting of the registered office under the second proviso. This appears to
be an independent threshold and s hould be treated strictly. The
arguments of the respondents that the appeal before the NCLAT is
frivolous, no stay was granted to the resolution plan, and refusal to shift
the registered office will defeat the entire purpose of the CIRP
implementation, run contrary to the plain and simple interpretation of the
proviso and the legislative intent behind it. Reading ‘and’ as conjunctively,
to mean that both the situations should cumulatively exist, i.e., an appeal
should be pending and an inquiry or investigation should also be pending
against the corporate debtor, in order to prevent shifting of the registered
office, would make the proviso extremely harsh and inoperative. Thus, a
purposive reading should be given to the actual intention of the legislature
as disclosed from the context of the amendment in 2023. In either of the
two situations, shifting shall not be allowed. The expression ‘shifting may
34
be allowed’ is qualified by the above two conditions. When either of the
two situations does not exist, the shifting may be allowed.
45. The first proviso is a complete bar to shifting of the registered office
in case inquiry, inspection and investigation or any prosecution is pending
against a company which wants to shift its registered office from one place
to another. The second proviso was incorporated to deal with an
application for shifting of a registered office, by the successful resolution
applicant, after approval of the resolution plan. The two provisos deal with
two different situations and class of applicants. The second proviso is
independent of the first, and has not been carved out of the first. Thus,
the decision in Satnam Singh and Others (supra) does not apply.
46. Here, protection has been given to the creditors, workers or any
person who is aggrieved by the resolution plan and has preferred an
appeal under the provisions of Section 31 of the IBC. The learned Single
Judge failed to take into consideration the effect of the second proviso.
The second proviso to Rule 30(9) is not in conflict with the IBC, and this
fact was lost sight of. Rule 30(8)(2), already provides for protection of
debenture holders, creditors and other stakeholders and also requires a
consensus. The procedure to be followed, if no consensus is reached has
been provided for. In spite of that, the second proviso was added to
specifically put a fetter on the exercise of statutory function by the
Regional Director. It is in the nature of an additional restriction
incorporated in 2023, as a restrictive condition to the general rule
governing the procedure to be followed by the Regional Director, while
disposing of an application under Section 13(4) of the 2013 Act. This
35
delegated piece of legislation is binding. It was deemed to be necessary by
the Ministry of Corporate Affairs, to put such restriction. The Regional
Director took note of the second proviso , but circumvented such
restriction by importing Section 238, IBC, which was erroneous. The
question before the Regional Director was not implementation of the
resolution plan. He was exercising a statutory function under the 2013
Act. Thus, the Regional Director was not authorized by law to adjudicate
on the overriding effect of the provisions of IBC to facilitate shifting. The
decision in Ghanshyam Mishra & Sons (supra) or Innovative
Industries Ltd. Vs. ICICI Bank reported in (2018) 1 SCC 407 and
Duncan Industries Ltd. Vs. A J Agrochem reported in (2019) 9 SCC
725 do not apply. The Regional Director was not deciding whether
Resolution Plan should be given privacy or not.
47. Rule 30(9) provides that the decision of the Regional Director
confirming the alteration of the registered office under Rule 30 (8), may be
subject to terms and conditions. Thus in all other cases, except those
covered under the two provisos under Rule 30(9), the shifting can be
confirmed upon certain terms and cond itions. The two provisos create
restrictions on Rule 30(9) i.e. if these two situations exist, in that event,
shifting cannot be allowed even on certain terms and conditions. It carves
out an exception to the main provision i.e., Rule 30(9) and limits the
power/jurisdiction of the Regional Director to permit shifting of the
registered office of the corporate debtor even by imposing terms a nd
conditions. The Regional Director was not deciding whether the resolution
plan should be given primacy or not.
36
48. With regard to the locus standi of the appellants, it is an admitted
fact that the proceedings before the NCLT and NCLAT are proceedings in
rem.
49. The specific case of the appellants was that the appellant No. 1 was
a stakeholder in the CIRP of the respondent No. 5. The appellants claimed
to have supplied transportation services to ensure that the respondent no.
5 was a going concern during the CIRP. Several invoices were raised. The
appellants alleged that the respondent no. 5 failed to make payment and
the interest accrued on account of delayed payment of invoices. The
appellants’ case was that under sections 15, 16 and 17 of the MSMED
Act, the respondent no. 5 was duty bound to make payment towards the
invoices raised by the appellants within 45 days. However, the respondent
no. 5 failed to do so and applications were filed before the NCLT. The
principal amount without interest, was directed to be paid. Under such
circumstances, an appeal was filed before the NCLAT at New Delhi.
Another appeal was filed before the NCLAT challenging the order of
approval of the resolution plan of the respondent no. 4 on various grounds
and also on the ground that no sum had been allocated to the appellants
against their pre-CIRP dues, amongst others.
50. The learned Single Judge recorded that 24 appeals are pending. The
records reveal that the appellants had preferred an appeal f rom the
resolution plan before the NCLAT. The Office of the Regional Director,
Ministry of Corporate Affairs issued notice on January 14, 2026 to 11
notices with regard to the hearing of the application under Section 13(4) of
the 2013 Act. The contents of the notices are quoted below:-
37
“Sub:- Application under Section 13(4) OF Companies Act, 2013 – In the
matter of M/s Hindusthan National Glass & Industries Limited for shifting
of Registered Office of the company from the state of West Bengal to the
State of Maharashtra.
Madam/Sir,
I am directed to refer to the subject application and to inform you
that Regional Director, Eastern Regional, Ministry of Corporate Affairs,
will conduct hearing of the subject application on 22
nd January, 2026 at
11.30 A.M. at the office of the Regional Director (ER) Kolkata, at
“Corporate Bhawan”, 6
th Floor, Plot No.- III-F/16, AA-IIIF, Rajarhat, New
Town, Akandakesari, Kolkata – 700135.
You are, therefore requested to convey your input/comments on the
matter and to remains present for hearing personally and/or through your
authorised representative along with Memorandum of Appearance/Power
of Attorney/Vakalatnama and supporting Board resolution with document
to enter appearance and make submissions, if any, in the matter with the
documents.”
51. Upon receipt of such notice, the appellants made their submissions
by raising their objections to the shifting. The appellants had been asked
to participate in the proceedings by the Regional Director. They are the
appellants before the NCLAT, who challenged the resolution plan. The
question of them not having locus to approach the writ court, in spite of
being aggrieved and dissatisfied with the decision of the Regional Director,
does not arise. They are the aggrieved party in a proceeding under Section
13(4) of the 2013 Act and they have challenged the said order before the
writ court, in the absence of any alternative efficacious remedy.
52. The grounds of appeal of the appellants before the NCLAT
challenging the order of approval of the resolution plan are set out from
the application for interim order filed before the NCLAT :-
“Grounds for challenge
5. The resolution plan has been approved despite INSCO having
specifically admitted before the Adjudicating Authority that feasibility of
the plan has been 'jeopardized' on account of the onerous conditions
imposed with respect to the insurance claim of the Sinnar plant.
Despite all such documents having been furnished before the
38
Adjudicating Authority the plan has been approved without even
adverting to the said documents.
6. The events that have occurred after approval of the resolution plan
by the CoC on 13.06.2025 make it evident that the resolution plan is
conditional and incapable of implementation. As is clea r from
averments in letter dated 30.06.2025, no provision has been made in
the plan for upkeep and maintenance of the Sinnar plant de hors the
insurance claim.
7. The plan has been approved by the Adjudicating Authority without
satisfying itself as to the compliance of S. 30(2) of the Code and despite
the plan being non-compliant with mandatory provisions of law. The
plan has been approved despite being in violation of S. 30(2)(b), proviso
to S. 31(4) of the Code, mandatory provisions of the IBBI (Insolvency
Resolution Process for Corporate Persons) Regulations, 2016 ('CIRP
Regulations') etc.
8. The impugned order is a result of complete non application of mind.
None of the objections raised by the stakeholders including the
Appellant have been considered by the Adjudicating Authority. The
applications raising objections including IVN. P. (IBC) No. 22/KB/2025,
filed by the Appellant have been dismissed without any analysis of the
objections raised on the mere ground of locus of the applicants therein
despite all such applicants including the Appellant being 'persons
aggrieved' under the Code.
9. IVN. P. (IBC) No. 22/KB/2025, filed by the Appellant has been
erroneously dismissed by stating that, 'since the petitioner has been
allotted payment in accordance with its admitted claim in the resolution
plan, it has no locus standi to raise objections at this stage', without
any analysis as to whether the amounts being paid to the Appellant
under the resolution plan are in accordance with S. 30(2)(b) of the
Code. In any case it is reiterated that the Appellant is a 'person
aggrieved' under the Code and hence its locus could not have been
questioned by the Adjudicating Authority.
10.Despite IVN. P. (IBC) No. 25/KB/2025 having been filed specifically
seeking an oral hearing with respect to documents suppressed by the
Respondents i.e., letter dated 30.06.2025 issued by INSCO to the CoC
and minutes of the 42nd CoC meeting held on 14.07.2025, the said
application has been dismissed without any consideration or analysis of
the said documents. The Adjudicating Authority has failed, to even
provide any reasons of dismissal of the said application.
11. The plan has been approved as a consequence of material
irregularity in exercise of powers by the Respondent No. 1, throughout
the CIRP period. Throughout the CIRP period, various illegal actions
have been committed by the Respondent No. 1. In fact, the Respondent
No. 1 has placed INSCO's resolution plan before the CoC, in complete
contravention of S. 30(2)(e) of the Code. This is despite specific findings
having been delivered by the Hon'ble Supreme Court in its Judgment
dated 29.01.2025, for not complying with provisions of S. 30(2) (e).
12. The plan has been approved despite the fact that a substantial
portion of the resolution plan amount is being paid from the cash
39
accruals of the Corporate Debtor, as is impermissible as per the scheme
of the Code and specific clauses of the RFRP. The RFRP specifically
restrains the SRA from using the cash accruals of the Corporate Debtor
for making payments to the creditors. However, no objections have been
raised by the RP or the CoC in this regard. In fact, despite the same
having been pointed out in the 40th CoC, meeting, the plan has been
found to be feasible and viable by the CoC.
13. The plan has been found to be feasible and viable only
pursuant to false submissions made before the CoC as is
evident from the minutes of the 40th CoC meeting.
14. The plan is inconsistent and vague in its approach towards
payment of CIRP costs. While the financial plan in the resolution plan
states that CIRP costs are to be paid out of the upfront cash, clause
3.2.2 of the plan states that CIRP costs are to be paid out of the
internal cash accruals of the Corporate Debtor and in the event the said
cash accruals are insufficient, CIRP costs will be paid out of the upfront
cash. However, as per the RFRP, the internal cash accruals of the
Corporate Debtor ought to be distributed amongst the financial
creditors.
15. The plan envisages various amounts to be paid out of the internal
cash accruals of the Corporate Debtor including the amount towards
deferred payment, implementation expenses etc. Hence, the plan is not
specific with regard to the payments being made, thereby raising
doubts with respect to its effective implementation.
16. There is a substantial difference between the definition of the term
'CIRP costs' as defined under the plan and as defined under the Code.
In view thereof, it is anticipated that it is anticipated that various
amounts due and payable to the Appellant, which are due to be paid
out of the CIRP costs, may be excluded.
17. The plan has been approved in complete contravention to the
provisions of S. 31(4) of the Code and the Competition Act, in as much
as the plan did not have a valid CCI approval, as on the date of its
approval by the CoC, as is a mandatory requirement. INSCO has also
admitted in the plan that it did not have a valid CCI approval and in
further erroneously stated that the requirement to obtain a 'prior' CCI
approval, is merely directory. However, the 40th CoC meeting
erroneously records that INSCO had a valid CCI approval.
18. The resolution plan is in complete violation of S. 30(2)(b) in as much
as the operational creditors, such as the Appellant, are getting paid
meagre amounts under the plan. The Impugned Orders are devoid of
any analysis as to whether the amounts being paid to the operational
creditors are in compliance with S. 30(2)(b) of the Code.
19. The plan is in complete contravention of the CIRP Regulations in as
much as, it does not provide for the mandatory particulars are specified
in Regs. 37 and 38. The plan does not specify a term, a cause of default
or any necessary measures for insolvency resolution and maximization
of assets of the Corporate Debtor.”
40
53. The learned Single Judge only considered that an appeal from the
order denying interest to the appellants by the NCLT was pending and as
such, pendency of the appeal should not be treated as a bar. The
pendency of the appeal from the resolution plan was not considered. The
records were overlooked by the learned Single Judge. The NCLAT had also
observed that appeal was pending.
54. The Single Judge considered the issue of prejudice, without
considering the prohibition in the second proviso to Rule 30(9) of the 2014
Act. Illegal exercise of jurisdiction by the Regional Director was not
considered by the learned court. The order of the Regional Director was in
excess of jurisdiction and violative of the second proviso to sub-rule 9 of
Rule 30. Moreover, both the Regional Director and the learned Single
Judge erred in holding that the NCLAT, by the order dated December 23,
2025, had directed the Regional Director to dispose of the application. The
NCLAT did not direct the Regional Director to exercise jurisdiction under
Section 13 of the 2013 Act, in any particular manner. The NCLAT was
approached by the respondent no. 4 to clarify whether the pendency of the
appeals would be a bar for the Regional Dir ector to consider the
application for shifting of the registered office of the company. In our view,
the application itself was misconceived. However, NCLAT opined that it
was up to the Regional Director, who was a statutory authority under the
2013 Act to take a decision in accordance with law , with a further
observation that the appeal was pending. This order of NCLAT was neither
a clarificatory order, nor could the NCLAT confer jurisdiction upon the
Regional Director to pass the order, inter alia, approving the change in
41
place of the registered office, contrary to the Rule. The order of NCLAT is
quoted below:-
“4. The above application filed by the Appellant has been opposed
by learned Counsel appearing for the Respondents as well as
learned Counsel appearing for the Appellant. It is submitted by
learned Counsel appearing for the Respondents that by virtue of
Companies (Incorporation) Rule, 2014, Rule 30, sub-rule (9), this
Appeal being pending against the approval of Resolution Plan,
registered Office, cannot be permitted to be shifted. On the other
hand, learned Counsel for the applicant submits that Rule 30, sub-
rule (9) of the Companies (incorporation) Rule, 2014 is not attracted
in the facts of the present case.
We, may quote Rule 30, sub -rule (9) of the Companies
(Incorporation) Rule, 2014 for ready reference, which is to the
following effect: “30(9) The order passed by the Central Government
confirming the alteration may be on such terms and conditions, if
any, as it thinks fit: Provided that the shifting of registered office
shall not be allowed if any inquiry, inspection or investigation has
been initiated against the company or any prosecution is pending
against the company under the Act. Provided further that where the
management of the company has been taken over by new
management under a resolution plan approved under section 31 of
the Insolvency and Bankruptcy Code, 2016 (31 of 2016) and no
appeal against the resolution plan is pending in any Court or
Tribunal and no inquiry, inspection, investigation is pending or
imitated after the approval of the said resolution plan, the shifting of
the registered office may be allowed.
5. The application filed by the Applicant for shifting of the
Registered Office is admittedly pending for consideration before the
Regional Director. In the present application, we need not enter into
rival contentions raised by the parties regarding Rule 30, sub-rule
(9) as noted above. We only observe and clarify that the pending
application for shifting of Registered Office of the CD, can be
considered by the Regional Director in accordance with law. We
make no observations on merits of contentions raised by both the
parties, and it is for the Regional Director, who is a Statutory
Authority to examine the application to consider the submissions of
the parties and take appropriate decision in accordance with law.
We further clarify that there is no order passed in this Appeal
affecting the Statutory Authority’s exercise of its jurisdiction in
deciding the application filed by the Applicant for shifting the Office
of the CD. The fact remains that the present Appeal is pending.”
55. The order was not adverse to the interest of the appellants and the
same was not required to be challenged by them. The NCLAT recorded
42
that the pending application should be considered by the Regional
Director in accordance with law and it was for the statutory authority to
hear the submissions of the parties and take an appropriate decision. This
order, under no circumstances, can be treated as a direction to allow the
application for shifting. The NCLAT did not enter into the rival contentions
of the parties.
56. The Regional Director had initially kept the application under
Section 13(4) of the 2013 Act in abeyance, on account of pendency of the
appeal. The respondent No. 4 approached the NCLAT with the following
prayers:-
“a) Pass an order clarifying that the pen dency of Appeals
challenging the Impugned Order dated 14.08.2025 approving the
resolution plan of INSCO shall not come in the way of Application
(SRN No. AB8591403 dated October 28, 2025) filed by HNGIL
(erstwhile Corporate Debtor) for changing its Registered Office from
Kolkata, West Bengal to Mumbai, Maharashtra;
b) Pass any such other or further order(s) as this Hon’ble Appellate
Tribunal may deem fit and proper in the interests of justice.”
57. The NCLAT did not allow the prayers. It opined that the Regional
Director should decide the issue in accordance with law. This order was
misconstrued both by the Regional Director and the learned Single Judge,
by treating the decision of the NCLAT as an interpretation of the second
proviso of Rule 30(9), and conferring jurisdiction upon the Regional
Director to proceed with the application in spite of pendency of the
appeals. The Regional Director had the discretion to allow shifting of the
registered office, but exercise of such discretion is circumscribed by Rule
30 of the said Rules and cannot be de hors the Rules.
43
58. The Regional Director had further exceeded his jurisdiction in
holding as follows :-
“11. In view of the above, this is a classic scenario where IBC, 2016
v Companies Act, 2013 are clashing as they are in conflict with each
other. When the resolution plan is approved, the goal of the
resolution plan is to give the company a fresh start i.e., clean slate
theory which has been recognized by Hon’ble Supreme Court in
various judgments from time to time.
12. The hurdle of Rule 30(9) of the Companies (Incorporation) Rules,
2014 often act as speed bumps as it essentially freezes the
registered office, if an appeal is pending, which is intended to
prevent the company from jurisdiction shopping or evading
creditors while the case is sub-judice. The resolution plan is a
binding document and if the plan or commercial necessity requires
the company to streamline operation, the IBC aims to facilitate the
transition and therefore the provision of Section 238 of IBC, 2016
comes to rescue.
13. There have been many cases wherein Section 238 of IBC, 2016
has superseded other previous laws and subsequent laws as well.
The Hon’ble Supreme Court from time to time has recognized the
clean slate theory emphasizing that a succ essful Resolution
Applicant should start on a fresh slate. Accordingly, the shifting of
registered office is part of the new life of the company and invoking
a technical rule to frustrate the mandate of IBC, 2016 may go
against public interest as the company is a going concern as per the
submissions of the applicant.”
59. While being conscious of the fact that the Companies
(Incorporation) Rules, 2014 essentially would freeze the registered office
when an appeal is pending, and the proviso was intended to prevent the
company from jurisdiction shopping and / or evading creditors while the
matter was sub judice, the Regional Director went on to hold that in spite
of the legal bar, the resolution plan being a binding document, should be
enforced and if the plan or commercial necessity required the company to
streamline the operation, shifting should be allowed. He drew his
authority to allow such shifting, in spite of being aware of the legal
embargo, by placing reliance on Section 238 of the IBC, which could not
44
be pressed into service in the said situation. Shifting of the registered
office was not under the provisions of the IBC and the jurisdiction of the
Regional Director is under the 2013 Act. The exercise of jurisdiction
should be as per the procedure laid down under Rule 30 of the 2014
Rules. Thus, seeking refuge under Section 238 of the IBC, to hold that the
implementation of the resolution plan would be of primary consideration
and would override any prohibition in any other statute, was incorrect.
Clause 6.1.5 of the resolution plan has been quoted in CAN 4 of 2026,
which provides as follows:-
“Clause 6.1.5.(xx) of Resolution Plan- From the date of NCLT
approval till the management is not taken over by the reconstituted
board, the CD and Monitoring Committ ee shall ensure that the
registered office is not shifted to any other state.”
60. In fact, it appears from the averments that the resolution plan did
not provide for shifting. It had provided that the registered office shall not
be shifted to any other state till the management was not taken over by
the reconstituted Board. This is also recorded in the order of the Regional
Director, which is quoted below :-
“As the company is a going concern and not shifting of the
registered office till the management is taken over by the Re-
constituted Board was the part of the plan and now the company
has been taken over by the Re -constituted Board and as such
taking in consideration of all the submission and in the interest of
justice, the shifting of registered office from the state of West Bengal
to the state of Maharashtra is allowed which shall be subject to
outcome of all the Company Appeals pending before the Honourable
NCLAT in respect of the resolution plan in the present matter.
Further the company shall be requir ed to give the following
undertaking in the office of this Directorate.”
45
61. Thus, the submissions of the respondents and the reasoning of the
Regional Director on the supremacy of the resolution plan in the instant
situation and a pressing need for implementation thereof, are misplaced.
62. With regard to the plea of alternative remedy, Section 60(5) of the
IBC is quoted below:-
60 (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.
63. The NCLT does not have the jurisdiction to adjudicate on the
legality of the order of the Regional Director passed under the provision of
Section 13(4) of the said Act. The decisions of Tata Power Western
Odisha (supra) and Paschimanchal Vidyut Vitran Nig am Ltd. (supra)
and Embassy Property Developments Private Limited (supra) do not
have any application.
64. As the decision of the Regional Director was beyond jurisdiction,
being in violation of the rules, the prejudice test will not be applicable.
Minor procedural irregularity or breach of principles of natural justice
may not be set aside on the ground that despite such irregularities, the
ultimate result would have been the same. In such cases, test of real
prejudice can be applied. In this case, there is a legal bar and as such
46
both the Regional Director and the learned Single Judge erred in holding
that the shifting would not be prejudicial to the intent of the appellants.
65. With regard to the contentions that the relief under Article 226 of
the Constitution of India is a discretionary relief and the writ court should
not interfere with the decision of a statutory authority unless the decision
was unjust, unfair or unreasonable, we are of the opinion that the writ
court should exercise jurisdiction whenever it finds that a statutory
authority had contravened the law or had acted in excess of jurisdiction
vested upon it by law. Moreover, had the Regional Director been of the
opinion that shifting may be allowed and the second proviso was not a
bar, in that event, shifting would not have been made subject to the result
of the appeal. The second proviso is clear and unambiguous. It should be
read as it is. When an appeal is pending from the resolution plan or an
inquiry, investigation or inspection is pending after the approval of the
resolution plan has been accepted, the shifting may not be allowed. The
learned court erred in holding that the Regional Director acted pursuant
to the order of the NCLAT and proceeded to deal with the application for
shifting of the registered office of the company and passed the order dated
February 4, 2026. NCLAT’s observation was to the limited extent that, the
Regional Director, being a statutory authority, should discharge his
function, by dealing with the application in accordance with law.
66. The learned Judge also erred in holding that, unless there was a
specific stay of the resolution plan in the appeal, the second proviso to
Rule 30(9) would not be an embargo in allowing th e application for
shifting of the registered office. By so observing, the learned Judge has
47
rewritten the Rules. Thus, the appeal is allowed. The order of the learned
Single Judge and the order of the Regional Director are set aside. The
application for shifting of the registered office filed by the resolution
applicant shall be kept in abeyance till the embargo under the second
proviso acts as a bar.
67. The connected applications are disposed of.
68. Urgent Photostat certified copies of this judgment, if applied, for be
supplied to the parties upon fulfilment of requisite formalities.
(Shampa Sarkar, J.)
I agree.
(Ajay Kumar Gupta, J.)
Later
The learned Advocate for the respondent no.4 prays for stay of the
judgement and order. Such prayer is considered and rejected.
(Shampa Sarkar, J.)
I agree.
(Ajay Kumar Gupta, J.)
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