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Deepak Gupta vs Rudra Buildwel Projects Pvt. Ltd

National Company Law Appellate Tribunal20 January 2020

Ratio decidendi

The rule this decision rests on

The Appellate Tribunal held that a person who is not a party to a Corporate Insolvency Resolution Process, and who has no right of intervention under the Insolvency and Bankruptcy Code, 2016, cannot be impleaded in that process merely to seek dismissal of the insolvency petition, and an application seeking such impleadment is not maintainable. The Appellate Tribunal held that the Adjudicating Authority may, in the exercise of its inherent power under Rule 11 of the National Company Law Tribunal Rules, 2016, permit an applicant under Section 7 to withdraw its application where the financial creditor has settled with the promoter of the corporate debtor, following the Supreme Court's decision in Swiss Ribbons Pvt. Ltd. & Anr. (as relied on in the impugned order), and the Appellate Tribunal declined to interfere with such withdrawal. The Appellate Tribunal held that an order permitting withdrawal of a Section 7 application does not bar a financial creditor or the corporate debtor from having a fresh application under Section 7 considered on its merits in accordance with law.

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

NATIONAL COMPANY LAW APPELLATE TRIBUNALNEW DELHICompany Appeal (AT) (Insolvency) No. 87 - 89 of 2020IN THE MATTER OF:Deepak Gupta ...AppellantVersus

Rudra Buildwel Projects Pvt. Ltd. ...Respondent

Present: For Appellant : Mr. Sumesh Dhawan and Mr. Gulshan Sachdeva, Advocates

ORDER

20.01.2020 The Appellant -'Financial Creditor' has filed an intervention

application in the 'Corporate Insolvency Resolution Process' of 'Rudra Buildwell

Projects Private Limited'. The order of impleadment has been rejected by the

impugned order dated 19th November, 2019, which reads as follows:

"The Corporate Insolvency Resolution Process' in the

present matter has been initiated on 05.11.2019 when CP

No. (IB)-1648(PB)/2018 was admitted. The present

application has been filed seeking impleadment of the

applicant and a request has been made for dismissing the

said petition. However, such a course is not permissible in

law. Accordingly, the application is not maintainable and

the same is dismissed.

All other applications are listed for 05.12.2019" 2

Having heard the learned counsel for the Appellant, we find that the

Appellants have moved an application under Section 7 later on.

The Appellants have moved the petition for review and in absence of any

mistake apparent on the face of the record, the review application was also

dismissed by the Adjudicating Authority (National Company Law Tribunal),

Principal Bench, New Delhi by order dated 3rd December, 2019, as follows:

"No ground for review is made out.

Application dismissed."

As the Appellant was having no right of intervention, the Review

Application was rightly rejected.

The third order dated 5th December, 2019 is under challenge whereby the

application under Section 7 filed by the Applicant -'Propertree Real Estate

Solutions Pvt. Ltd.' has been allowed to be withdrawn as the 'Financial Creditor'

reached settlement with the 'Promoter' of the 'Corporate Debtor'.

The Adjudicating Authority (National Company Law Tribunal), Principal

Bench noticed that the 'Corporate Insolvency Resolution Process' was initiated

on 5th November, 2019 and on the same date permitted to reach the settlement

with the 'Financial 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 Tribunal

Rules, 2016, allowed the Resolution Professional to withdraw the application.

Now, the learned counsel for the Appellant submits that the Appellant had

filed an application under Section 7 of the 'I&B Code' on 3rd December, 2019,

which is pending. However, we are not inclined to interfere on such ground for

withdrawal of application under Section 7 of the 'I&B Code'.

Company Appeal (AT) (Insolvency) No. 87 - 89 of 2020 3

However, we make it clear that the order of the Adjudicating Authority

passed on 5th December, 2019 or any other earlier orders passed by the

Adjudicating Authority will not come in the way of the Appellant or the 'Corporate

Debtor' when the Adjudicating Authority will consider the application on the

merit in accordance with law.

The appeal stands disposed of with aforesaid observations.

[Justice S.J. Mukhopadhaya] Chairperson

[ Justice Bansi Lal Bhat ] Member (Judicial)

/ns/sk/

Company Appeal (AT) (Insolvency) No. 87 - 89 of 2020

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