A.Murlidharan vs Chava Bharath Kumar & Ors

A.Murlidharan ...Appellant

Vs.

Chava Bharath Kumar & Ors. ...Respondents

Present: For Appellant: - Mr. Purushottam Kr. Jha, Advocate

For Respondent:- Mr. Virender Ganda, Sr. Advocate with Mr. Varun Sethi, Mr. Ajay Bowry, Advocate for R-1 Mr. Divyanshu Goyal and Ms. Shikha Sinha, Advocates.

ORDER

23.07.2018─ There is nothing on the record to suggest that a notice

was issued by the Adjudicating Authority (National Company Law

Tribunal) to the 'Corporate Debtor' before admitting the application under

Section 9 of the Insolvency & Bankruptcy Code, 2016 (for short 'I & B Code'

2016). There is also nothing on record to suggest that notice under Section

8(1) issued by the 'operational creditor' was served on the 'Corporate

Debtor'.

Mr. Virender Ganda, Learned Senior Counsel appearing on behalf of

the 'Operational Creditor' submits that the respondent - 'Operational

Creditor' has agreed to reinitiate the proceedings by issuance of fresh

notice under Section 8(1) of the 'I & B Code' 2016 in accordance with law.

In view of such stand taken by the respondent and the observations

made above, we set aside the impugned order dated 17th January 2018 with

liberty to the respondent - 'operational creditor' to proceed in accordance

with law.

For the purpose of service of notice if there is a confusion relating to

address of the 'Corporate Debtor', the address given by the 'Corporate

Debtor' in this appeal be treated to be the correct address. In such case if

the notice returned on the ground that there is "No such person", the

shareholder/director or the 'Corporate Debtor' cannot take advantage of the

same.

It will also be open to the respondent - 'operational creditor' to serve a

copy on Mr. A. Murlidharan, Shareholder.

In effect, order (s), passed by the Adjudicating Authority appointing any

'Resolution Professional', declaring moratorium, freezing of account, and all

other order (s) passed by the Adjudicating Authority pursuant to impugned

order and action, taken by the 'Resolution Professional', including the

advertisement, published in the newspaper calling for applications all such

orders and actions are declared illegal and are set aside. The application

preferred by Respondent under Section 9 of the I&B Code, 2016 is dismissed

with liberty aforesaid. Learned Adjudicating Authority will now close the

proceeding. The 'Corporate Debtor' (company) is released from all the rigour

of law and is allowed to function independently through its Board of Directors

from immediate effect.

The Adjudicating Authority will fix the fee of 'Resolution Professional'

and the 'Corporate Debtor' will pay the fees for the period he has functioned.

The appeal is allowed with aforesaid observation. However, in the facts and

circumstances of the case, there shall be no order as to cost.

(Justice S.J. Mukhopadhaya) Chairperson

(Justice Bansi Lal Bhat) Member(Judicial) sm/uk