Madhukar Tulsi vs Ajay Kumar Gupta & Ors

Madhukar Tulsi ...Appellant

Versus

Ajay Kumar Gupta & Ors. ...Respondents

Present: For Appellant : Shri U.K. Chaudhary, Senior Advocate assisted by Shri Parminder Singh and Shri Himanshu Vij, Advocates

For 1st Respondent: Shri Sachin Jain and Shri Ajay Gupta, Advocates

ORDER

30.11.2017 The appellant, Director of IERO Fiveriver Pvt. Ltd. (Corporate

Debtor) has preferred this appeal against order dated 13th November, 2017

passed by the Adjudicating Authority (National Company Law Tribunal), New

Delhi in C.P. No. IB-355/ND/2017 whereby and whereunder the application

preferred by Ajay Kumar Gupta and Mrs. Poonam Gupta under Section 7 of the

Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as the "I&B Code')

has been admitted, order of moratorium has been passed and Interim Resolution

Professional has been appointed.

When the matter was taken up, learned Senior Counsel for the appellant

submits that settlement has been reached between the Corporate Debtor and

Financial Creditor on 18th November, 2017 and thereby requested to dispose of

the appeal in terms of the settlement. However, as this Appellate Tribunal is not

empowered to accept any settlement/agreement reached between the parties, in

Company Appeal (AT) (Insolvency) No. 279 of 2017 1 absence of any illegality in the impugned order dated 13th November, 2017, no

interference is called for against the impugned order.

At this stage, it is desirable to notice Rule 8 of the Insolvency and

Bankruptcy (Application to Adjudicating Authority) Rules, 2016, which reads as

follows:

"8. Withdrawal of application.--The Adjudicating Authority may permit withdrawal of the application made under rules 4, 6 or 7, as the case may be, on a request made by the applicant before its admission."

From the aforesaid Rule, it is clear that before admission of an application

under section 7 or 9 or 10, the Adjudicating Authority may permit the applicant

to withdraw the application, but after admission of the application, the

application cannot be withdrawn.

For the reasons aforesaid, no relief can be granted by this Appellate

Tribunal, though we find that parties have settle the dispute which is also

accepted by the learned counsel for the Financial Creditor.

However, the order passed by this Appellate Tribunal will not come in the

way of the appellant to ask for appropriate relief from the Hon'ble Supreme

Court.

The appeal is dismissed with the aforesaid observation. No cost.

[Justice S.J. Mukhopadhaya] Chairperson

[ Justice Bansi Lal Bhat ] Member(Judicial) /ns/uk

Company Appeal (AT) (Insolvency) No. 279 of 2017 2