Deltronix India Ltd. & Ors vs Indiabulls Housing Finance Ltd

Deltronix India Ltd. & Ors. . . .Appellants

Vs.

Indiabulls Housing Finance Ltd. .. .Respondent

Present: For Appellants: - Mr. Nesar Abmad, PCS, Mr. Ashutosh Dubey, Mr. Ramas and Tarun Khanna, Advocates.

For Respondent:- Mr. Sumesh Dhawan and Vatsala Kak, Advocates.

ORDER

01.12.2017- On the oral request of the learned Company Secretary

appearing on behalf of the Appellants- M/s. Deltronix India Ltd. is

allowed to be transposed as 2nd Respondent. 'Indiabulls Housing

Finance Ltd' be treated to be 1St Respondent. The appeal will be treated

to an appeal preferred by Mr. Kapil Gupta & Anr. Appropriate

modification in the cause title be made accordingly.

(Justice S.J. Mukhopadhaya) Chairperson

(Justice Bansi Lal Bhat) Member(Judicial) Ar/uk NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI

Company Appeal (AT) (Insolvency) No. 297 of 2017

IN THE MATTER OF:

Kapil Gupta & Anr. ...Appellants

Vs.

Indiabulls Housing Finance Ltd. & Anr. ...Respondents

Present: For Appellants: - Mr. Nesar Ahmad, PCS, Mr. Ashutosh Dubey, Mr. Ramas and Tarun Khanna, Advocates.

For Respondents:- Mr. Sumesh Dhawan and Vatsala Kak, Advocates.

ORDER

01.12.2017- This appeal has been preferred by Appellants against the

order dated 24th November, 2017 passed by Adjudicating Authority

(National Company Law Tribunal), Principal Bench, New Delhi in

Company Petition No. (IB)-245(PB)/20 17, whereby and whereunder the

application preferred by 1st Respondent under Section 7 of the

Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as

Code") has been admitted, order of moratorium has been passed and

'Interim Resolution Professional' has been appointed with certain

directions.

2. Mr. Nesar Ahmad, Company Secretary appearing on behalf of the

Contd/ -

Company Appeal (AT) (Insolvency) No. 297 of 2017 -2-

Appellants submits that the Appellant has reached a settlement with

the 1st Respondent ('Financial Creditor) and therefore, the 'Corporate

Insolvency Resolution Process' initiated against the 'Corporate Debtor'

be set aside.

3. Learned counsel appearing on behalf of the Respondent-

'Financial Creditor', while accepting that settlement has been reached,

submits that settlement has been reached after the impugned order

dated 24th November, 2017 was passed and only part payment has been

made.

4. It is a settled law that after admission of an application under

Section 7 of the 'I&B Code', the 'Financial Creditor' or 'Operational

Creditor' or 'Corporate Applicant' cannot withdraw the application even

if a settlement has been made. The Adjudicating Authority once initiates

the 'Corporate Insolvency Resolution Process', has no jurisdiction to

recall the order of admission dated 24th November, 2017. In this

connection, one may refer to Rule 8 of the Insolvency and Bankruptcy

(Application to Adjudicating Authority) Rules, 2016, which is as follows:

"8. Withdrawal of application. - The

Adjudicating Authority may permit withdrawal

Company Appeal (AT) (Insolvency) No. 297 of 2017 of the application made under rules 4, 6 or 7, as

the case may be, on a request made by the

application before its admission."

5. In the present case, as we find that there is no illegality or

infirmity committed by Adjudicating Authority in admitting the

application under Section 7 of the 'I&B Code', we find no ground to

interfere with the impugned order. For the said reasons also this

Appellate Tribunal has no jurisdiction to accept the settlement reached

between the parties to annul the impugned order, though it is open to

the Appellants to move before a court of competent jurisdiction for

appropriate relief.

6. After the order was dictated, learned Company Secretary

appearing on behalf of the Appellants, requested to pass interim order

of protection to enable the appellant to move before the Hon'ble Supreme

Court but as we are not interfering with the impugned order dated 24th

November, 2017, the question of granting interim protection does not

arise.

7. However, it is needless to say that during the 'Resolution Process',

the 'Resolution Professional' is required to ensure that the Company

Company Appeal (AT) (Insolvency) No. 297 of 2017 -4-

remains on-going and if so necessary, he may take assistance of the

(suspended) Board of Directors. The authorised person of the 'Corporate

Debtor', who is authorised to sign the bank cheques may issue cheque

only after authorisation of the 'Resolution Professional'. The bank

account(s) of the 'Corporate Debtor(s)' can be allowed to be operated for

day-to-day functioning of the companies and its projects and for

payment of current bills of the suppliers, salaries and wages of the

officers, employees'/ workmen, electricity and water bills, etc.

8. The appeal is dismissed with the aforesaid observations. No cost.

(Justice S.J. Mukhopadhaya) Chairperson

(Justice Bansi Lal Bhat) Member(Judicial) Ar/uk

Company Appeal (AT) (Insolvency) No. 297 of 2017