Girish Surajmal Chandak vs Nandlal Giridhar Popat

Girish Surajmal Chandak ...Appellant

Versus

Nandlal Giridhar Popat ...Respondent

Present: For Appellant : Mr. G.P. Madaan, Ms. Payal Juneja, Ms. Pankhuri Kaur and Mr. Utkarsh Mishra, Advocates

For Respondent : Mr. Kamal Ahuja and Mr. Chetan Tripathi, Advocates

ORDER

06.05.2019 The Appellant, shareholder of 'Samadhan Marketing &

Merchandise Pvt. Ltd.' has preferred this appeal against order dated 11th

February, 2019 passed by the Adjudicating Authority (National Company Law

Tribunal), Mumbai Bench whereby the application u/s 9 of the Insolvency and

Bankruptcy Code, 2016 (for short, 'the I&B Code') filed by the Respondent

'Nandlal Girdhar Popat' (Operational Creditor) for claiming the amount of

Rs. 2,81,250/- has been admitted. Learned counsel appearing on behalf of the

appellant submits that for a meagre amount of Rs. 2,81,250/- the 'Corporate

Debtor' has been made to suffer though it was brought to the notice of the

Adjudicating Authority that a civil suit was filed much prior to issue of a Demand

Notice dated 22nd February, 2018. It is also submitted that in any case the

Appellant is ready with Demand Draft of Rs.2,81,250/- to pay in favour of the

'Operational Creditor'.

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2. 'Operational Creditor' claimed that in view of Lease Deed, 'Corporate

Debtor' had issued post-dated cheques which got dishonoured. Learned counsel

appearing on behalf of the Respondent accepts that a civil suit was filed though

he adds that it relates to some other case. However, from the record we find that

the suit was filed by the 'Corporate Debtor' on 22nd February, 2017 against the

'Operational Creditor' being 'R.C.S. No. 98 of 2017' before the Hon'ble Civil Judge,

Junior Division - 9 Court, Chandrapur. The prayer of the suit sought to

restrain 'Operational Creditor' from encashing the cheques. It is only thereafter

the application u/s 9 of the I&B Code was filed and Demand Notice was issued

by the 'Operational Creditor' on 22nd February, 2018.

3. In view of the reasons aforesaid, we hold that there is 'existence of dispute'

and the application u/s 9 was not maintainable. However, further the counsel

for the Appellant has handed over the draft of Rs.2,81,250/- dated 8th March,

2019 issued by the IDBI Bank, Chandrapur, Maharashtra. We are of the view

that it is a fit case to close the proceedings.

4. For the reasons aforesaid, we set aside the impugned order dated 11th

February, 2019 and dismiss the application u/s 9 of the I&B Code filed by the

Respondent (Operational Creditor) as not maintainable. The matter having been

settled by payment of Rs. 2,81,250/-, the learned counsel for the Respondent

will transmit the draft to the 'Operational Creditor' immediately.

5. In the result, order(s) passed by Ld. Adjudicating Authority appointing

'Interim Resolution Professional', declaring moratorium and all other order(s)

passed by Adjudicating Authority pursuant to impugned order and action taken

by the 'Resolution Professional' are set aside. The application preferred by the

Respondent under Section 9 of the I&B Code is disposed of. The Adjudicating

Company Appeal (AT) (Insolvency) No. 336 of 2019 3

Authority will now close the proceeding. The Respondent Company is released

from all the rigour of law and is allowed to function independently through its

Board of Directors from immediate effect.

6. So far as the fee and resolution cost of the 'Interim Resolution Professional'

is concerned, the Adjudicating Authority will fix the fee of the 'IRP', which the

'Corporate Debtor' will pay the amount. If any amount has already been paid, it

shall be adjusted.

[Justice S.J. Mukhopadhaya] Chairperson

[ Justice A.I.S. Cheema ] Member (Judicial)

/ns/gc

Company Appeal (AT) (Insolvency) No. 336 of 2019