Growel Feeds Pvt Ltd vs Ashadeep Aquaculture Pvt Ltd
- CitationCompany Appeal (AT) (Insolvency) No. 754 of 2023
Ratio decidendi
The rule this decision rests on
Where a Section 9 petition has been disposed of as settled out of court and the Adjudicating Authority has declined to grant liberty to revive it, a subsequent breach of the settlement terms does not permit revival of the disposed petition; the operative course open to the creditor is to file a fresh application under Section 9 of the Insolvency and Bankruptcy Code, 2016, and the Adjudicating Authority does not err in refusing restoration of the earlier petition.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
Growel Feeds Pvt. Ltd. ...Appellant
Versus
Ashadeep Aquaculture Pvt. Ltd. ...Respondent
Present: For Appellant: For Respondent:
ORDER
03.07.2023: This Appeal has been filed by the Appellant challenging the
Order of the Adjudicating Authority by which Restoration Application No. 01
of 2023 to restore the Company Petition has been rejected.
2. In the Company Petition filed under Section 9 of I&B Code, 2016, a
settlement took between the parties and by order passed by the Adjudicating
Authority on 13th September, 2022, matter was disposed of. And following
order was passed by the Adjudicating Authority:
"Ld. Counsel Ms. M. Tripathy appears on behalf of the petitioner.
Respondent is represented by Ld. Counsel Mr. S.K. Acharya. Both
the counsel jointly submit that the matter has been amicably
settled out of court and in this regard settlement memo has been
filed. Accordingly, the matter is disposed of as settled out of court."
3. Subsequent to the said order, it appears that settlement terms were not
honoured by the Corporate Debtor. On the breach being committed, an
application was filed to revive the CIRP. The Adjudicating Authority has taken -2-
the view that there is a fresh cause of auction to take appropriate action
against the party concerned which has been observed in Paragraph 9 of the
Order. It is further stated that Adjudicating Authority in its order dated 13th
September, 2022 in spite of request to grant liberty to revive has negavitated
the said request hence the revival cannot be granted.
4. We are of the view that in the facts of the present case, especially when
the liberty sought by the memo was not granted by the Adjudicating Authority
the course open for the Appellant was to file a fresh application under Section
9 of the Code and the Adjudicating Authority did not commit any error in
refusing to revive the earlier Company Petition.
With these observations, we dispose of this Appeal.
[Justice Ashok Bhushan] Chairperson
[Mr. Barun Mitra] Member (Technical)
Basant/nn
Company Appeal (AT) (Insolvency) No. 754/2023
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