Deepak Kapoor vs Umesh Chand Goyal & Ors

NATIONAL COMPANY LAW APPELLATE TRIBUNAL, PRINCIPAL BENCH, NEW DELHI Company Appeal (AT) (Insolvency) No. 353 of 2022 IN THE MATTER OF: Deepak Kapoor, (Shareholder/Director of Sarash Exports Services Pvt. Ltd.) ...Appellant Versus Umesh Chand Goyal ...Respondent Present: For Appellant: Mr. Kunal Anand, Ms. Saloni Mahajan, Advocates For Respondent: Mr. Aditya Gauri, Advocate for R-1 Mr. Abhinav Tyagi with Shri U.C. Goyal, Advocates for Liquidator Mr. Ashutosh Goel, Advocate for Respondent No. 2

ORDER

08.09.2022: Heard Learned Counsel for the parties.

This appeal has been filed against the order dated 23.12.2021 passed by

the Adjudicating Authority by which IA No. 5175/2020 and IA No. 4559/2021

has been allowed.

2. IA No. 5175 has been filed by the Resolution Professional u/s 33(2) for

issuance of directions for liquidation and IA No. 4559 was filed by the Resolution

Professional for appointment of Mr. Umesh Chand Goyal, as liquidator of the

Corporate Debtor.

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3. The Adjudicating Authority by the Impugned order has allowed both the

applications. Aggrieved by the said order, the Appellant an ex-Director of the

Corporate Debtor has come for appeal.

4. Learned Counsel for the Appellant submits that Adjudicating Authority

after hearing the parties has passed an order on 08.12.2021 by which, direction

was issued to submit a report within 10 days by the Resolution Professional and

the matter was fixed for 24.12.2021. He submit that even before 24.12.2021,

order has been passed on 23.12.2021 allowing the liquidation application. He

submit that when the order was passed on 08.12.2021, Adjudicating Authority

was well aware about the liquidation application filed by the Resolution

Professional and without considering the report, which was called for, order of

liquidation has been passed.

5. It is submitted that Corporate Debtor does not have any asset except the

amount of receipt of GST refund from GST and certain fund which was to be

infused by the ex-director. He submits that no purpose shall be served by the

liquidation.

6. Learned Counsel for liquidator submits that report was submitted as

directed by order dated 08.12.2021 on 22.12.2021. He submit that the report

was already on the record and the Adjudicating Authority has rightly passed

the order for liquidation.

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7. Learned Counsel for CoC submit that in the order dated 08.12.2021, it

was wrongly recorded that settlement agreement had been executed. He submit

that an application was filed by the Learned Counsel for CoC which was allowed

on 24.12.2021 by which the statement recorded in the earlier order was

withdrawn.

8. We have considered the submissions of the Learned Counsel for the parties

and peruse the records.

9. The order dated 08.12.2021 was passed by the Adjudicating Authority is

to the following effect: -

"In the present matter, Learned Counsel for the CoC has

appeared and stated that certain talks were there

regarding the settlement. Settlement agreement was

also executed. The application for liquidation has been

filed on behalf of RP. Arguments were heard on the

previous date of hearing. At this stage, certain new

facts have emerged before this Tribunal. Hence Learned

Counsel for the CoC and RP are directed to file an

affidavit to the effect that how much amount from the

GST refund has been received and how much amount

has been paid by Ex-Directors after the settlement was

arrived between the parties and after the order was Company Appeal (AT) (Insolvency) No. 353 of 2022 3 passed by this Tribunal. Report shall be filed within ten

days.

Let, the matter be fixed for 24.12.2021. Order on the

liquidation application shall be pronounced only after

going through the report to be filed by the RP in this

Matter.

List all the IA on 24.12.2021."

10. The Adjudicating Authority well aware that the liquidation application has

been filed.

11. The Adjudicating Authority directed the Learned Counsel for the CoC and

Resolution Professional to file an affidavit to the effect that how much amount

from the GST refund has been received and how much amount has been paid by

ex-Director after the settlement was arrived between the parties.

12. Learned Counsel for the Appellant does not dispute that no settlement

agreement was executed between the parties. He, however, submits that

settlement talks were going on between the parties which was yet to be finalised.

13. When the Adjudicating Authority has already fixed the date on 24.12.2021

and called for a report, we fail to see that what was the reason for hearing the

application one day before on 23.12.2021 and allowing the liquidation Company Appeal (AT) (Insolvency) No. 353 of 2022 4 application without considering the report which was called for by the

Adjudicating Authority himself especially when the report is said to have been

filed on 22.12.2021 as contended by the Learned Counsel appearing for the

Liquidator.

14. The order does not give any reason as to why the Adjudicating Authority

is not required to consider the report and straightway proceed for directing for

liquidation.

15. We, thus, are satisfied that on this ground alone, the order impugned

deserved to be set aside. The appeal is allowed. The Impugned Order dated

23.12.2021 is set aside. The matter is remitted to the Adjudicating Authority

for fresh consideration of the application which are pending for liquidation and

other applications which are pending before the Adjudicating Authority.

Adjudicating Authority shall endeavour to dispose of the applications as

early as possible. The appeal is allowed accordingly.

[Justice Ashok Bhushan] Chairperson

[Mr. Barun Mitra] Member (Technical)

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