Madhurima Mridul & Anr vs Raj Infrastructures Development ...
- CitationCompany Appeal (AT) (Insolvency) No. 573 of 2018
Ratio decidendi
The rule this decision rests on
The appointment of an Interim Resolution Professional by the Adjudicating Authority without calling for names from the Insolvency and Bankruptcy Board of India does not by itself vitiate the admission order where the appointee's tenure is limited to thirty days or until a regular Resolution Professional is appointed, so that any irregularity in the appointment is of limited practical consequence and does not warrant interference in appeal. An application under Section 9 of the Insolvency and Bankruptcy Code, 2016 may be admitted on the first day of hearing where the Corporate Debtor has already been noticed and has appeared, the application is in order in Form 5, and there is debt and default; in such circumstances the Adjudicating Authority's admission of the application is not open to challenge on the ground of the timing of its admission. A plea that an application under Section 9 is collusive must be supported by evidence of collusion; a bare allegation unsupported by any evidence does not furnish a ground for setting aside admission.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
Mrs. Madhurima Mridul & Anr. ...Appellants
Vs.
Raj Infrastructures Development (India) Pvt. Ltd. & Ors. ...Respondents
Present: For Appellants: - Mr. Arun Kathpalia, Senior Advocate with Mr. Sunil Fernandes, Mr. Siddharth Sharma, Ms. Anju Thoman and Ms. Shruti Arora, Advocates.
ORDER
24.09.2018─ The Appellant, an allotee of the real estate project of the 'Corporate Debtor' has preferred this appeal against the order dated 30th August, 2018 passed by the Adjudicating Authority (National Company Law Tribunal), Mumbai Bench, Mumbai, whereby and whereunder, the application under Section 9 of the Insolvency and Bankruptcy Code, 2016 ('I&B Code' for short) preferred by the Respondents- 'M/s. Raj Infrastructure Development (India) Private Limited'- ('Operational Creditor') has been admitted.
2. Learned Senior Counsel appearing on behalf of the Appellants submitted that the 'Interim Resolution Professional' has been suo moto appointed by the Adjudicating Authority without calling for name(s) from the Insolvency and Bankruptcy Board of India ('Board' for short). However, we are not inclined to interfere with the impugned order on such ground as the period of functioning of an 'Interim Resolution Professional' is thirty-days or till the regular 'Resolution Professional' is appointed and the impugned order passed on 30th August, 2018. In normal course the 'Interim Resolution Professional' in question will function only upto 29th September, 2018 i.e. for another few days or till a regular 'Resolution Professional' is appointed by decision of the 'Committee of Creditors'.
-2- 3. It was next contended that the impugned order has been passed on the very first day when the matter came for admission. However, as we find that the 'Corporate Debtor' has already been noticed and appeared and in absence of any infirmity in the application under Section 9 in Form-5 and there being debt and default, the Adjudicating Authority has admitted the application, we are not inclined to interfere with the impugned order on such ground. If any suit or other case has been filed by the Appellant (allottee of land) against the 'Corporate Debtor' and pending before a Court of Competent Jurisdiction, may be taken up on completion of 'Moratorium' period.
4. We further hold that the submission made by learned Senior Counsel that the application under Section 9 is collusive is to be rejected in absence of any evidence to suggest collusion. We find no merit in this appeal, the appeal stands disposed of with aforesaid observations.
(Justice S.J. Mukhopadhaya) Chairperson
(Justice Bansi Lal Bhat) Member(Judicial) Ar/uk
Company Appeal (AT) (Insolvency) No. 573 of 2018
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