International Recreation & Amusement ... vs S.R. Construction

International Recreation & Amusement Ltd. ... Appellant

Versus

S.R. Construction ... Respondent

Present: For Appellant: Shri Virender Ganda, Senior Advocate with Shri Vivek Mallik, Shri Tarun Mehta and Shri Dhawan Jam, Advocates

For Respondent: Shri Swaroop George, Advocate

For Financial Creditor: Shri Pankaj Jam, Advocate

ORDER

11.10.2017 An application for condonation of delay has been

preferred by the appellant. It is stated that the impugned order dated 28th

April, 2017 was passed without notice to the appellant-'Corporate Debtor',

no copy of the order was made available by the Adjudicating Authority

(National Company Law Tribunal), Principal Bench, New Delhi

(hereinafter referred to as 'Adjudicating Authority'). The appellant could

come to know of the impugned order from the 'Interim Resolution

Professional' on 20th July, 2017 and preferred the appeal on 26th July,

2017.

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2. On notice, learned counsel for the respondent-'Operational Creditor'

has appeared and not disputed the aforesaid fact. Learned counsel for

the respondent further submits that the parties have settled the dispute.

3. Shri Pankaj Jam, Advocate appeared and filed Vakalatnama on

behalf of some of the Financial Creditors. He submits that the other

Financial Creditors have also filed the claim application before the 'Interim

Resolution Professional'. However, it has not been disputed that the

impugned order was passed without notice to the appellant-'Corporate

Debtor' in violation of the rules of natural justice.

4. For the reasons aforesaid, while we hold that the appeal is within

the time i.e. within 30 days from the date of knowledge, the impugned

order dated 28th April, 2017 having passed in violation of rules of natural

justice is set aside.

5. In effect, order(s), if any, passed by learned Adjudicating Authority

appointing any 'Interim Resolution Professional' or declaring moratorium,

freezing the account and all other order(s) passed by Adjudicating

Authority pursuant to impugned order dated 28th April, 2017 and action,

if any, taken by the 'Interim Resolution Professional', including the

advertisement, if any, published in the newspaper calling for applications

etc. and all such orders and actions are declared illegal and are set aside. -3-

The application preferred by the respondent under Section 9 of the I&B

Code, 2016 is dismissed. Learned Adjudicating Authority will now close

the proceeding. The appellant company is released from all the rigour of

law and is allowed to function independently through its Board of

Directors from immediate effect.

6. Learned Adjudicating Authority will fix the fee of 'Interim Resolution

Professional', if appointed, and the appellant will pay the fees of the

'Interim Resolution Professional', for the period he has functioned as per

their settlements. The appeal is allowed with the aforesaid observations

and directions. However, in the facts and circumstances of the case, there

shall be no order as to cost.

7. However, the impugned order will not come in the way of other

Financial Creditor(s) / Operational Creditor(s), if any, move before

appropriate forum.

(Justice S.J. Mukhopadhaya) Chairperson

(Justice A.I.S. Cheema) (Balvinder Singh) Member (Judicial) Member(Technical)

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