Electrosteel Steels Ltd vs Imperia Structures Ltd

Electrosteel Steels Ltd. ...Appellant

Versus

Imperia Structures Ltd. ...Respondent

Present:

For Appellant : Mr. Naman Joshi and Mr. Ankit Rajgarhia, Advocates

For Respondent : Mr. Tarun Singla, Advocate

ORDER

09.02.2018 The appellant - M/s. Electrosteel Steel Ltd. (through

Resolution Professional) has preferred this appeal against order dated 15th

September, 2017 passed by the Adjudicating Authority (National Company Law

Tribunal), Principal Bench, New Delhi, which reads as follows:

"Application on behalf of the management is incompetent as the management is now in the hands of Insolvency Resolution Professional. Any application has to be filed by the IRP alone as the erstwhile management has no locus standi. This aspect has also been clarified by Hon'ble Supreme Court in the case of Innoventive Industries Ltd. v. ICICI Bank & Anr. (Civil Appeal Nos. 8337-8388/2017, decided on 31st August, 2017.

Therefore, the application is dismissed."

2

2. Learned counsel appearing on behalf of the appellant submits that the day

on which an application under Section 9 of the Insolvency and Bankruptcy Code,

2016 (hereinafter referred to as the 'I&B Code') was filed by Electrosteel Steels

Ltd., no corporate insolvency resolution process was initiated against it and,

therefore, the application by Electrosteel Steels Ltd. (Operational Creditor) to the

Management/erstwhile Board of Directors was maintainable. According to the

learned counsel the subsequent order of corporate insolvency resolution process

against the appellant - Electrosteel Steels Ltd. cannot take away the right of

Corporate Debtor to pursue the application under Section 9 of the I & B Code,

which was maintainable at the time of filing.

3. Mr. Tarun Singla, learned counsel appearing on behalf of the respondent

submits that the parties are negotiating to settle the dispute.

4. Having heard the learned counsel appearing on behalf of the appellant and

the respondent while we are of the view that the application under Section 9 of

the I & B Code as on the date of filing was maintainable through the original

Management, but taking into consideration the fact that Electrosteel Steels Ltd.

has already undergoing the corporate insolvency resolution process and now the

resolution professional was intends to proceed against the respondent under

Section 9 of the I & B Code, we give liberty to the appellant through Resolution

Professional to file fresh application under Section 9 of the I & B Code after giving

demand notice to the Corporate Debtor in terms of sub-section (1) of Section 8.

If the matter is not settled and amount is not paid, it will be open to the appellant

to file fresh application under Section 9 of the I & B Code and pursue the same.

Company Appeal (AT) (Insolvency) No. 238 of 2017 3

In such case, the Adjudicating Authority determine the matter independently

uninfluenced by the impugned order dated 15th September, 2017.

The appeal stands disposed of with the aforesaid observations. No cost.

[Justice S.J. Mukhopadhaya] Chairperson

[ Justice Bansi Lal Bhat ] Member (Judicial)

/ns/uk

Company Appeal (AT) (Insolvency) No. 238 of 2017