Kamal Kumar Kandpal, Ex-Direcotor, ... vs Sanghvi Movers Ltd. & Anr

Kamal Kumar Kandpal, Ex-Director, Lepton Projects Private Limited & Anr. ...Appellant

Vs.

Sanghvi Movers Limited & Anr. ...Respondents

Present: For Appellant: - Mr. Narendera N. Sharma and Ms. Prachi Gupta, Advocates.

For Respondents:- Mr. Nitin S. Tambwekar, Advocate for 1st Respondent. Mr. Hemendra, Advocate for 2nd Respondent.

ORDER

31.05.2018- Mr. Kamal Kumar Kandpal, Director of 'Lepton Projects

Private Limited'- ('Corporate Debtor') has preferred this appeal against

an order dated 9th April, 2018, passed by the Adjudicating Authority

(National Company Law Tribunal), Principal Bench, New Delhi in (IB)-

518(PB)/2017, whereby and whereunder, the application under Section

9 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to

as "I&B Code") preferred by the 'Sanghvi Movers Limited' has been

admitted, order of 'Moratorium' has been passed and 'Insolvency

Resolution Professional' has been appointed.

Contd/-...........

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2. Learned counsel appearing on behalf of the Appellant submitted

that no notice under Section 8(1) of the 'I&B Code' was served on the

'Corporate Debtor'. The impugned order dated 9th April, 2018 has been

passed without notice to the 'Corporate Debtor'.

3. He further brought to the notice of this Appellate Tribunal the

affidavit by dasti served by the 1st Respondent- 'Sanghvi Movers

Limited'- ('Operational Creditor') wherein he has stated that the

Respondents reached the office of Mr. Kamal Kumar Kandpal, the

Director of the 'Corporate Debtor' and found neither the 'Corporate

Debtor' nor their representative were occupying the premises. In spite

of the same, the Adjudicating Authority without hearing the 'Corporate

Debtor' passed the impugned order.

4. It is submitted that if the demand notice would have been received

in terms of Section 8(1) or notice of the petition would have been served

on the Appellant, they could have settled the claim. In fact, the amount

has been paid to the 'Operational Creditor'.

5. Mr. Nitin S. Tambwekar, learned counsel appearing on behalf of

the 'Operational Creditor' accepts that the notice could not be served on

the 'Corporate Debtor' and also accepts that the Appellant has paid the

amount in favour of the 'Operational Creditor'.

Company Appeal (AT) (Insolvency) No. 273 of 2018 -3-

6. Mr. Hemandra, Advocate appears on behalf of the 'Resolution

Professional' submits that if the order is set aside then the Court should

ensure payment of fees and cost incurred by the 'Resolution

Professional'.

7. In view of the aforesaid stand taken by the Appellant and not

disputed by the Respondent, we have no other option but to set aside

the impugned order. We accordingly set aside the order dated 9th April

2018 and allow the prayer.

8. In effect, order (s), passed by the Adjudicating Authority

appointing 'Interim Resolution Professional', declaring moratorium,

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

Authority pursuant to impugned order and action taken by the 'Interim

Resolution Professional', including the advertisement, if any, published

in the newspaper calling for applications and all such orders and actions

are declared illegal and are set aside. The application preferred by

Respondent under Section 9 of the I&B Code, 2016 is dismissed.

Learned Adjudicating Authority will now close the proceeding. The

'Corporate Debtor' (company) is released from all the rigour of law and

is allowed to function independently through its Board of Directors from

immediate effect.

Company Appeal (AT) (Insolvency) No. 273 of 2018 -4-

9. The 'Corporate Debtor' will pay a sum of Rs. 1,50,000/- in favour

of the 'Interim Resolution Professional' towards fee and another sum of

Rs. 37,000/- towards the expenses i.e. total of Rs. 1, 87,000/- within

15 days. The appeal is allowed with aforesaid observation and

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

shall be no order as to cost.

(Justice S.J. Mukhopadhaya) Chairperson

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

Company Appeal (AT) (Insolvency) No. 273 of 2018