Gautam Shaw vs Indiabulls Housing Finance Ltd. & Anr

Gautam Shaw ...Appellant

Vs.

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

Present: For Appellant: - Mr. Nitin Sangra, Advocate.

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

ORDER

21.01.2019─ This appeal has been preferred by Mr. Gautam Shaw,

Director/shareholder of 'Utkram Chemicals Pvt. Ltd.'- ('Corporate

Debtor') against the order dated 4th December, 2018 passed by the

Adjudicating Authority (National Company Law Tribunal), Kolkata

Bench, Kolkata in Company Petition (IB) No. 454/KB/2018, whereby and

whereunder, the application preferred by Respondent- 'Indiabulls

Housing Finance Limited'- ('Financial Creditor') under Section 7 of the

Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as "I&B

Code") has been admitted, order of 'Moratorium' has been passed and

'Interim Resolution Professional' has been appointed with directions as

mentioned therein.

Company Appeal (AT) (Insolvency) No. 64 of 2019 2

2. Learned counsel appearing on behalf of the Appellant submits that

the Appellant could not get proper opportunity as the Lawyer Mr. D Joy

Das was earlier appeared on behalf of the 'Corporate Debtor', failed to

appear on subsequent dates. However, on such ground, the impugned

order dated 4th December, 2018 cannot be set aside in absence of any

infirmity.

3. From the record, we find that the 'Corporate Debtor' was allowed

to file affidavit in reply to the application. But, in spite of repeated

adjournments and opportunities granted by the Adjudicating Authority,

the 'Corporate Debtor' failed to file affidavit in reply. The counsel for the

Appellant initially appeared, but for the reason known to the 'Corporate

Debtor, no one appeared on behalf of the 'Corporate Debtor' on

subsequent fixed dates.

4. Learned counsel appearing on behalf of the Appellant submits that

subsequently on 26th December, 2018, the Appellant has settled the

claim with the 1st Respondent- 'Indiabulls Housing Finance Limited'.

However, subsequent settlement between the parties cannot be a ground

to set aside the order of admission there being a debt and default on the

date of admission.

5. In this background, while no relief can be granted to the Appellant

or to the 'Corporate Debtor', we condone the delay of 11 days in preferring

the appeal and allow I.A. No. 140 of 2019. Further, we make it clear that

Company Appeal (AT) (Insolvency) No. 64 of 2019 3

the order passed in this appeal will not come in the way of the Appellant

or any person to move before the 'Committee of Creditors', after taking

care of all the creditors, to file application under Section 12 A of the 'I&B

Code'.

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

(Justice S.J. Mukhopadhaya) Chairperson

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

Company Appeal (AT) (Insolvency) No. 64 of 2019