M/S. Hyosan Automative India Pvt. Ltd vs Metecno (India) Pvt. Ltd

M/s. Hyosan Automative India Pvt. Ltd. ...Appellant

Vs.

Metecno (India) Pvt. Ltd. ...Respondent

Present: For Appellant: - Mr. P. Jegan, Advocate.

For Respondent:- Mr. Nikhil, Advocate.

ORDER

09.10.2017- This appeal has been preferred by Appellant-'Corporate

Debtor' against the order dated 16th August, 2017 passed by the

Adjudicating Authority (National Company Law Tribunal), Chennai

Bench, Chennai in TCP/232/(IB)/CB/2017 whereby and whereunder

on the Transfer Petition under Sections 433(e)(f), 433(i)(a) and 439(i)(b)

of the Companies Act 1956, the Adjudicating Authority treated the

application under Section 9 of the Insolvency and Bankruptcy Code,

2016 (hereinafter referred to as "I&B Code"), admitted the application,

initiated 'Corporate Insolvency Resolution Process', passed prohibitory

orders in terms of 'I&B Code' and requested the Insolvency and

Bankruptcy Board of India to recommend the name of 'Interim

Resolution Professional'.

Contd/ -

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2. The main plea taken by the appellant is that the Adjudicating

Authority has treated the petition as an application under Section 9

wherein the documents were not complete in terms of the 'I&B Code'.

3. Learned Counsel for the appellant submits that Rule 5 of the

Companies (Transfer of Pending Proceedings) Rules, 2016 as notified by

the Central Government on 7th December, 2016 and subsequently

modified, has not been complied with. The respondent has not

submitted all information required for admission of the petition under

Section 9 of the 'I&B Code' within 60 days, nor proposed the name of

the 'Interim Resolution professional'. He further submits that the parties

have already settled the dispute.

4. On notice, the Respondent-'Operational Creditor' has appeared

and filed reply. It has not been disputed that the provisions of the 'I&B

Code' were not followed in letter and spirit. Nothing on records suggest

that notice under Section 8 was issued or the requirements under Rule

5 was followed.

5. Learned Counsel appearing on behalf of the Respondent submits

that the parties have settled the dispute and filed a copy of the

settlement.

6. Having heard the parties, as we find that the application under

Section 433(e)(f) read with Sections 433(i)(a) and 439(i)(b) of the Companies Act 1956, which was transferred to the Adjudicating

Authority was not complete before treating it as an application under

Section 9 of the 'I&B Code' and admitting the case, we hold that the

application was fit. to be rejected. The Adjudicating Authority having

failed to notice the same, we set aside the impugned order dated 16th

August, 2017.

7. In effect, order (s), if any, passed by Ld. Adjudicating Authority

appointing 'Interim Resolution Professional', declaring moratorium,

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

Authority pursuant to impugned order and action, if any, taken by the

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

published in the newspaper calling for applications 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

appellant company is released from all the rigour of law and is allowed

to function independently through its Board of Directors from

immediate effect.

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

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

Interim Resolution Professional, for the period he has functioned. The

appeal is allowed with aforesaid observation and direction. However, in -4-

the facts and circumstances of the case, there shall be no order as to

cost.

(Justice S.J. Mukhopadhaya) Chairperson

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

Ar