Agarwal Polysacks Limited vs Kk Agro Foods & Storage Pvt. Ltd

M/s. Agarwal Polysacks Ltd. ....Appellant Vs. M/s. K.K. Agro Foods & Storage Ltd. ...Respondent

For Appellant Mr. Manish Paliwal, Advocate. For Respondent Mr. Abhijeet Sinha, Mr. Yash Sharma, Advocates.

ORDER

(HYBRID MODE)

21.11.2023: IA No.5365 OF 2023:- This IA has been filed by the

Corporate Debtor praying for clarification of the judgment dated 11.09.2023.

Reliefs claimed in the application are as follows:-

"INTERIM RELIEF

It is therefore, most humbly and respectfully prayed that during the pendency of the present Miscellaneous Application the time period of 30 days as mentioned in the order dated 11.09.2023 may kindly be extended till the decision of the present Application.

Any other appropriate order or direction which this Hon'ble Tribunal deems fit and proper in the facts and circumstances of the case may kindly be 2

pleased to pass in favour of the Applicant/Corporate Debtor.

FINAL RELIEF

It is therefore, most humbly and respectfully prayed that the Hon'ble Tribunal may graciously be pleased to allow the present application and the order dated 11.09.2023 may kindly be clarified to the effect that the order dated 11.09.2023 in no manner bars or preclude either the Applicant/Corporate Debtor from tendering the entire defaulted amount to the Appellant/Financial Creditor or the Learned NCLT from passing appropriate order in case the defaulted amount is tendered by Applicant/Corporate Debtor to the Appellant/Financial Creditor.

Any other appropriate order or direction which this Hon'ble Tribunal deems fit and proper in the facts and circumstances of the case may kindly be pleased to pass in favour of the Applicant/Corporate Debtor."

2. By our judgment and order dated 11.09.2023, we have allowed the

Company Appeal (AT) (Insolvency) No.1126 of 2022 and in paragraph 33 of the

judgment, we have issued following directions:-

"33. In view of the foregoing discussion and our conclusions, we hold order of the Adjudicating Authority rejecting Section 7 Application is unsustainable and deserve to be set aside. In result, we allow the Appeal. Set aside order dated 29.07.2022 and direct the Adjudicating Authority to I.A. No. 5365 of 2023 IN Company Appeal (AT) (Insolvency) No. 1126 of 2022 3

pass an order admitting Section 7 application within the period of 30 days from the date copy of this order is pronounced. Appeal is allowed accordingly."

3. This Application has been filed by the Corporate Debtor stating that the

Corporate Debtor is ready to liquidate the entire debt of the Operational

Creditor and he has also offered to make the payment by Bank Draft which

has not been accepted. It is submitted that in view of the aforesaid, this

Tribunal may issue clarification as prayed in the application.

4. We had set aside the order of the Adjudicating Authority and directed

the Adjudicating Authority to pass an order admitting Section 7 application

within 30 days.

5. We clarify that the order passed by us dated 11.09.2023 does not

preclude the Adjudicating Authority to consider the prayer of the Corporate

Debtor if it is ready to pay the entire debt along with the interest to the

Operational Creditor. It is open for the Adjudicating Authority to consider any

such offer and if the entire debt is liquidated there may not be any necessity

to admit Section 7 application.

6. Learned Counsel for the Appellant submits that this application for

clarification is not maintainable. The application is filed under Rule 11 of the

NCLAT Rules, 2016, we are of the view that the application for clarification of

the judgment can very well be entertained in exercise of power under Rule 11

and the submission of the Appellant that application is not maintainable

cannot be accepted. With the clarifications as above, we dispose of this

I.A. No. 5365 of 2023 IN Company Appeal (AT) (Insolvency) No. 1126 of 2022 4

application. We have not modified any of our directions issued in paragraph

33.

[Justice Ashok Bhushan] Chairperson

[Barun Mitra] Member (Technical)

Anjali/nn

I.A. No. 5365 of 2023 IN Company Appeal (AT) (Insolvency) No. 1126 of 2022