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Growel Feeds Pvt Ltd vs Ashadeep Aquaculture Pvt Ltd

National Company Law Appellate Tribunal3 July 2023Ashok Bhushan

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

NATIONAL COMPANY LAW APPELLATE TRIBUNALPRINCIPAL BENCH, NEW DELHICompany Appeal (AT) (Insolvency) No. 754 of 2023IN THE MATTER OF:

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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