Anupam Industries Limited vs Saket Road Carriers Private Limited

This appeal has been filed against the order dated 27.09.2021 by which

order, Learned 'Adjudicating Authority' has allowed IA No. 651/2021 in CP(IB)

34/2020.

2. Earlier an order was passed, there being a settlement between the parties

on 29.06.2021 to the following effect: -

"Both of them submitted that the

matter is settled accordingly withdrawal

pursis is filed on record. Permission to

withdraw the main matter granted. If the

settlement fails, the Operational Creditor is

at liberty to get revive its original

application.

Company Appeal (AT) (Ins) No. 995 of 2021 1 The matter stands withdrawn and

disposed of".

3. Subsequent to the aforesaid order disposing the matter as withdrawn, an

application was filed by R-1 who was the Applicant in Company Petition for

revival of CP(IB) 34/2020. In the application in para (1.2)(v) the following

statements were made:-

"It is stated that under the settlement

agreement, the CD had promised that the cheques

issued by it share, on presentation, be honoured

and it shall maintain sufficient funds in its bank

account so as to get the said cheques honoured.

It is however, submitted that out of the aforesaid

six cheques, the only three cheques dated

1/4/2021, 1/5/2021, 1/6/2021 when

deposited, came to be honoured. Thereafter, the

cheque dated 1/7/2021 for Rs. 15,00,000/-,

cheque dated 1/8/2021 for Rs. 15,00,000/- and

cheque dated 1/9/2021 for Rs. 14,81,293/- all

got dishonoured upon presentation. Copies of the

cheque return memo of the above referred cheques

are annexed hereto and marked as Annexure-

DColly."

Company Appeal (AT) (Ins) No. 995 of 2021 2

4. After considering the application, the Learned 'Adjudicating Authority' has

passed the impugned order which is to the following effect:-'

"IA651(AHM)2021 in CP(IB) 34 of 2020 is

filed for revival main CP (IB) No. 34/2020

which was disposed of on the ground of

settlement. Heard the learned counsel

appearing for the applicant. Request of the

applicant is allowed.

We hereby direct Financial Creditor as well as

Registry to send notice to the Corporate Debtor

by speed post as well as by E-mail. The

affidavit of proof of service to be filed within

two weeks.

The matter stands adjourned to 22.11.2021

for further consideration.

IA 651(AHM)2021 in CP(IB) 34 of 2020 is

allowed and stands disposed of."

5. Learned Counsel for the Appellant submits that he has not been given an

opportunity to contest the application in I.A.No. 651/2021 in CP(IB) 34/2020

and without giving him an opportunity, the impugned order has been passed.

6. We have considered the submissions of the Learned Counsel for the

Appellant and perused the records.

Company Appeal (AT) (Ins) No. 995 of 2021 3

7. By order dated 29.06.2021, the Learned 'Adjudicating Authority' has

granted liberty to the 'Operational Creditor' (OC) to revive its original application

in event the settlement fails.

8. Under the settlement, post-dated cheques were given cheques dated

1.4.2021, 1.5.2021 and 1.6.2021 were honoured and thereafter three cheques

i.e. dated 1.7.2021, 1.8.2021 and 1.9.2021 were dishonoured giving the right to

the Company Petitioner to revive the application as per liberty granted by the

court on 29.6.2021.

9. In this appeal, the Appellant has not come up with a case that the

statement made in para (1.2) (v) as quoted above that three cheques have been

dishonoured was incorrect and subsequent three cheques were not dishonoured.

10. Thus, when the settlement failed, by virtue of the liberty granted by order

dated 29.6.2021, the court has not committed any error in reviving the

application. It is open for the Appellant to take such pleas as permissible in law

before the Learned 'Adjudicating Authority'. With this, we do not find any merit

in the Appeal. The appeal is dismissed.

[Justice Ashok Bhushan] Chairperson

[Justice Jarat Kumar Jain] Member (Judicial)

[Dr. Alok Srivastava] Member (Technical) Shashi/nn

Company Appeal (AT) (Ins) No. 995 of 2021 4