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Kaushal Kantilal Salvi vs Sqm Europe N.V. & Anr

National Company Law Appellate Tribunal11 December 2019

Ratio decidendi

The rule this decision rests on

Where the parties have settled the operational creditor's Section 9 application before a Committee of Creditors has been constituted, the Appellate Tribunal, exercising its power under Rule 11 of the NCLT Rules, 2016, may set aside the admission order and permit the application to be withdrawn, releasing the corporate debtor from the corporate insolvency resolution process on compliance with the terms of the settlement. The fee and costs payable to the Interim Resolution Professional may be fixed by the Tribunal in the circumstances of the case, including where he has incurred costs and is entitled to fees for the period of his tenure, and such amount may be directed to be paid by the appellant.

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHICompany Appeal (AT) (Insolvency)No. 1158 of 2019

IN THE MATTER OF: Kaushal Kantilal Salvi .....Appellant Vs. SQM Europe N.V. & Anr. ......Respondents

Present : For Appellant: Mr. Anil Kaushik, Mr. Rajinder Singh, Mr. Shankar, Mr. Naman Garg, Advocates For Respondents: Mr. Preet Pal Singh, Mr. Rahul Ahuja, Advocates

Mrinali Prasad, Advocate

O R D E R

11.12.2019 - 'SQM Europe N.V. & Anr.' ('Operational Creditor') has moved

an application u/s 9 of the Insolvency & Bankruptcy Code, 2016 ('I&B' Code, for

short) for initiation of 'Corporate Insolvency Resolution Process' against 'Salvi

Chemical Industries Ltd.' ('Corporate Debtor'). The Adjudicating Authority

('National Company Law Tribunal') Mumbai Bench, by impugned order dated

15th October, 2019 admitted the application.

On 7th November, 2019, when the matter was taken up, the Learned

Counsel for the Appellant submitted that the Appellant has already taken steps

....contd.

2

for settlement with the 'Operational Creditor'. It was also informed that

'Committee of Creditors' has not been constituted. In the circumstances, while

notice was issued to the 'Interim Resolution Professional', he was asked not to

constitute 'Committee of Creditors', if not yet constituted.

The Respondent 'SQM Europe N.V. & Anr.' ('Operational Creditor') and

'Interim Resolution Professional' have appeared. A Settlement Agreement dated

9th December, 2019 has been filed, in terms of which, the payment is to be made

as per schedule.

Learned Counsel appearing on behalf of 'Interim Resolution Professional'

submits that while accepting that the 'Committee of Creditors' was not

constituted also stated that the said 'Resolution Professional' has increased the

cost and entitled for fee for about two months.

In view of the fact that parties have reached the settlement prior to the

constitution of 'Committee of Creditors' and in exercise of powers conferred by

Rule 11 of 'NCLT' Rules, 2016, we set aside the impugned order dated 15th

October, 2019 and allow the application u/s 9 to be withdrawn. The 'Corporate

Debtor' is released from the rigour of 'Corporate Insolvency Resolution Process'

and subject to compliance of the terms and conditions as made in the said

agreement which should be treated to be direction of this Appellate Tribunal. On

failure, it will be open to the Respondent

....contd.

3

to ask for initiation of contempt proceedings and also for recall of this order so

as to revive the 'Corporate Insolvency Resolution Process'.

So far as fee and cost of 'Interim Resolution Professional' is concerned we

assess it at Rs. 4 lakhs to which Learned counsel for 'Interim Resolution

Professional' agrees. The Appellant will pay the amount of Rs. 4 lakhs within

two weeks by RTGS or Demand Draft.

The Appeal is allowed with aforesaid observations and directions.

[Justice S. J. Mukhopadhaya] Chairperson

[ Justice Bansi Lal Bhat ] Member (Judicial)

[Justice Venugopal M.] Member (Judicial)

ss/sk

Company Appeal (AT) (Insolvency)No. 1158 of 2019

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