Asit Kumar Jana vs M/S Shavini Construction Pvt Ltd

IN THE MATTER OF: Asit Kumar Jana & Anr. ...Appellants Versus Shanivi Construction Pvt. Ltd. & Anr. ...Respondents Present: For Appellant : Ms. Manisha Chaudhary, Mr. Mansumyer Singh, Mr. Shravan Chandrashekhar, Ms. Manisha Sharma, Advocates. For Respondents : Mr. Ajay Paul, Advocate for R-1. Mr. Deepayan Mandal and Mr. Mridul Bansal, Advocates for R-2

ORDER

28.02.2023: On 21.02.2023, Ld. Counsel for both the parties requested

for granting time for filing appropriate affidavit, in view of the fact that during

pendency of the appeal dispute in between the parties had already been settled

amicably. However, Ms. Manisha Chaudhary, Ld. Counsel for the Appellant

submitted that for just decision in the matter it was necessary to allow her to

file impleadment application. Prayer for filing impleadment application was

allowed on 21.02.2023.

In view of earlier order an intervention application vide I.A. No. 791 of

2023 has been filed with a prayer to implead Mr. Sanjay Kumar, presently

Managing Director and Shareholder of the IGL as one of the Appellant. On the

question of impleadment, Mr. Ajay Paul, Ld. Counsel for Respondent No.1 as

well as Mr. Deepayan Mandal, Ld. Counsel for Respondent No. 2, Company in

question have got no objection; rather a submission was made that to avoid -2-

any further complication it would be appropriate to allow the present

impleadment application. In view of submission made by Ld. Counsel for the

parties there is no reason not to allow the intervention application. Accordingly,

I.A. No. 791 of 2023 is allowed. Ld. Counsel for the Appellant is permitted to

implead Mr. Sanjay Kumar as Appellant No. 2 in course of day.

Similarly, a joint application has been filed enclosing there with settlement agreement dated 17.02.2023 as Annexure-A2 which is at running page 36 to 43. Since, the parties had already settled the dispute there is no reason to keep the appeal pending. In terms of clause no. 3 of the agreement, Ld. Counsel for the Appellant has handed over a demand draft of Rs. 2,00,00,000/-(Rupees Two Crores Only) i.e. the settlement amount to Mr. Ajay Paul, Ld. Counsel for Respondent No. 1. Accordingly, in terms of the agreement as well as the fact that the settlement amount has already been paid before this tribunal there is no reason to keep the appeal pending. The appeal stands disposed of.

The present appeal was filed under Section 61 (1) of the Insolvency and Bankruptcy Code, 2016 (herein after referred to as 'IBC') against an order dated 16.09.2021 passed by National Company Law Tribunal, New Delhi Bench (herein after referred to as 'NCLT') whereby petition filed by the Respondent No.1 herein under Section 9 was admitted and CIRP was initiated. However, in view of a peculiar facts and circumstances on appeal being filed, a Bench of this Tribunal by its order dated 20.09.2021 has directed for a stay of operation of the impugned order till the next date of hearing which stay order is still continuing.

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Normally, we may refrain from examining the question of settlement in

such proceeding but in view of peculiar facts and circumstances, particularly

the fact that the stay order is in operation since 20.09.2021 and the

Operational Creditor in view of settlement does not intent to further proceed

with the CIRP, it is appropriate to pass an order for setting aside the impugned

order whereby application filed under Section 9 of the IBC was admitted. The

appeal accordingly is allowed particularly in terms of the settlement in between

the parties. This order has been passed in peculiar facts and circumstances of

the present case and may not be treated as precedent.

[Justice Rakesh Kumar] Member (Judicial)

[Dr. Alok Srivastava] Member (Technical)

sr/gc

Company Appeal (AT) (Ins) No. 772 of 2021