Mukesh Agarwal vs Ultimate Infracity Pvt. Ltd. & Anr

Mukesh Agarwal ...Appellant

Versus

Ultimate Infracity Pvt. Ltd. & Anr. ...Respondents

Present:

For Appellant : Mr. Rajiv Ranjan, Senior Advocate assisted by Mr. Pramod Sharma, Advocate

For Respondent : Mr. Ahsaan Ahmad, Advocate for IRP

ORDER

20.12.2018 This appeal has been preferred by the appellant, shareholder

of M/s. Paramount Propbuild Pvt. Ltd. ('Corporate Debtor') against the order

dated 16th November, 2018 passed by the Adjudicating Authority (National

Company Law Tribunal), New Delhi (Court No. IV) whereby and whereunder an

application under Section 9 was filed by M/s. Ultimate Infracity Pvt. Ltd.

(Operational Creditor) has been admitted. The order dated 27th November, 2018

passed by the Adjudicating Authority appointing the 'Interim Resolution

Professional' is also under challenge.

Learned counsel for the appellant submits that notice under Section 9 was

never served on the 'Corporate Debtor' and the ex-parte order of admission was

passed without giving any opportunity to the 'Corporate Debtor' otherwise

parties would have settled the issues.

2

On 10th December, 2018, learned counsel for the appellant referred to a

notice issued by the Adjudicating Authority enclosed at page No. 182 and the

affidavit served by the respondent -'Operational Creditor' which is at page 187-

189, from which it appears that notice was never served on the 'Corporate

Debtor'.

The 1st Respondent - 'Operational Creditor' has appeared and admitted

that no notice was issued by the Adjudicating Authority was nor served on the

'Corporate Debtor' before the order of admission passed on 16th November, 2018.

It is informed that the parties have also reached the settlement on 1st December,

2018.

Learned counsel appearing on behalf of the 'Interim Resolution

Professional' submits that he has already performed his duties till 30th

November, 2018 - for about 20 days and has also incurred expenses towards

publication of notice, compliance etc.

Having heard the learned counsel for the parties and taking into

consideration that the impugned order dated 16th November, 2018 passed in

violation of rules of natural justice, we set aside the order dated 16th November,

2018. In view of the fact that the parties have settled the matter on 1st December,

2018, we are not remitting the matter to the Adjudicating Authority.

In effect, order (s) passed by Ld. Adjudicating Authority appointing 'Interim

Resolution Professional', declaring moratorium, freezing of account and all other

order (s) passed by Adjudicating Authority pursuant to impugned order and

action taken by the 'Resolution Professional', including the advertisement

published in the newspaper calling for applications and other orders and actions

as taken are declared illegal and are set aside. The application preferred by the

Company Appeal (AT) (Insolvency) No. 766-767 of 2018 3

1st Respondent under Section 9 of the I&B Code is dismissed. The Adjudicating

Authority will now close the proceeding. The 'Corporate Debtor' is released from

all the rigour of 'I&B Code' and is allowed to function independently through its

Board of Directors from immediate effect.

Taking into consideration the nature of the work performed by Mr. Rajesh

Kumar Parek, 'Interim Resolution Professional', we direct the 'Corporate Debtor'

to pay a sum of Rs. Two Lakhs in favour of the 'Interim Resolution Professional'

towards fees and the actual expenses as have been incurred by him. The

Resolution Professional will submit the actual bill and the 'Corporate Debtor' will

clear the same within 15 days.

The appeal stands disposed of with the aforesaid observation and

directions. No cost.

I.A. No. 2082 of 2018 stands disposed of.

[Justice S.J. Mukhopadhaya] Chairperson

[ Justice Bansi Lal Bhat ] Member (Judicial)

/ns/uk/

Company Appeal (AT) (Insolvency) No. 766-767 of 2018