Ashish Choudhery vs Unipik Automation Solutions & Anr

Mr. Ashish Choudhery ...Appellant Versus M/s. Unipik Automation Solutions & Anr. ...Respondents Present: For Appellant: Mr. Nikhil Gupta and Mr. Sumit K. Batra, Advocates

For Respondents: Mr. Hitesh Malhotra, Managing Partner of R-1 Mr. Ravi Bansal, IRP

ORDER

10.06.2019 The Respondent - 'M/s. Unipik Automation Solutions' filed an

application u/s 9 of the 'Insolvency and Bankruptcy Code, 2016 (for short, 'the

I&B Code') against 'Choudhery Cheese Bazar Pvt. Ltd.' (Corporate Debtor). The

Adjudicating Authority (National Company Law Tribunal), New Delhi Bench by

impugned order dated 23rd April, 2019 having admitted the application u/s 9 of

the 'I&B Code', the present appeal has been preferred by 'Mr. Ashish Choudhery'

a shareholder of M/s. Choudhery Cheese Bazar Pvt. Ltd.'

2. On 21st May, 2019, the learned counsel for the Appellant submitted that

the Appellant intends to settle the matter with the Respondent and the

'Committee of Creditors' have not yet been constituted. Today, it is informed

that the Appellant has settled the matter with the 1st Respondent - 'M/s. Unipik

Automation Solutions' which has received the demand drafts of Rs. 75,502/- 2

dated 17th May, 2019; Rs. 3,000/- on 23rd May, 2019 and Rs. 1,32,600/- on 17th

May, 2019. It is also intimated that a sum of Rs. 2,00,000/- was paid by

Respondent No. 1 (Operational Creditor) to the 'Interim Resolution Professional'

which has also been paid back by Respondent No. 1 by Demand Draft dated 23rd

May, 2019.

3. Mr. Hitesh Malhotra, Managing Partner of 'M/s. Unipik Automation

Solutions' appears in person and submits that the 1st Respondent has already

received the amounts by Demand Draft.

4. Mr. Ravi Bansal, 'Interim Resolution Professional' appears in person and

submits that he has incurred a cost of Rs.1,13,000/- towards expenses and also

entitled to receive the fee for a period of one and a half month (45 days). He also

informed that the 'Committee of Creditors' have not yet been constituted.

5. Taking into consideration the aforesaid fact that the parties have settled

the matter prior to the constitution of the 'Committee of Creditors' and in view

of the decision of the Hon'ble Supreme Court in 'Swiss Ribbons Pvt. Ltd. &

Anr', - '2019 SCC Online SC73' and in exercise of inherent powers under Rule

11 of the National Company Law Appellate Tribunal Rules, 2016, we set aside

the impugned order dated 23rd April, 2019 and allow the respondent (Operational

Creditor) to withdraw the application under Section 9 of the I&B Code. The

Adjudicating Authority will close the proceedings. So far as the fee and

Company Appeal (AT)(Ins) No. 544 of 2019 3

resolution cost of the 'Interim Resolution Professional' is concerned, the

'Resolution Professional' will be entitled for a fee of Rs. 1,50,000 towards

professional fee and a sum of Rs. 1,13,000/- cost incurred by him i.e. total

Rs.2,63,000/-. As he has already received Rs. 2,00,000/-, rest of Rs. 63,000/-

amount will be paid by the Corporate Debtor within 15 days, failing which it will

be open to the 'Resolution Professional' to move before this Appellate Tribunal

for initiation of contempt proceedings against the Appellant

In effect, order (s) passed by Ld. Adjudicating Authority appointing 'Interim

Resolution Professional', declaring moratorium and all other order (s) passed by

Adjudicating Authority pursuant to impugned order and action taken by the

'Resolution Professional' are set aside. The application preferred by the

Respondent under Section 9 of the I&B Code is disposed of as withdrawn. The

Adjudicating Authority will now close the proceeding. The Respondent Company

is released from all the rigour of law and is allowed to function independently

through its Board of Directors from immediate effect.

The appeal is allowed with aforesaid observations and directions. No

costs.

[Justice S.J. Mukhopadhaya] Chairperson

[Justice A.I.S. Cheema] Member (Judicial)

[Kanthi Narahari] Member (Technical) ns/sk/

Company Appeal (AT)(Ins) No. 544 of 2019