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Prakash Assar vs Mrs. Meena Sakariya Anr

National Company Law Appellate Tribunal24 May 2023Ashok Bhushan

Ratio decidendi

The rule this decision rests on

Where a Section 9 application is filed and the corporate debtor's prior non-compliance with a settlement arrangement, together with its failure to meaningfully reduce the claimed debt after filing, establishes both debt and default, the Adjudicating Authority is right to admit the application; a part-payment made after filing that does not materially mitigate the debt and default does not displace that conclusion. Where the corporate debtor expresses willingness to settle, the appropriate course is for the appellant to enter into a settlement with the operational creditor and apply under Section 12A to the Adjudicating Authority, which is to consider the application in accordance with law; pending that, a short time may be granted during which the Interim Resolution Professional does not constitute the Committee of Creditors, failing which the CIRP proceeds in accordance with law.

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

Judgment

As delivered

NATIONAL COMPANY LAW APPELLATE TRIBUNALPRINCIPAL BENCH, NEW DELHICompany Appeal (AT) (Insolvency) No. 677 of 2023IN THE MATTER OF:

Prakash Assar ...Appellant

Versus

Meena Sakariya & Anr. ...Respondents

Present: For Appellant: Mr. Abhinav Agrawal, Advocate. For Respondents: Mr. Anoop Prakash Awasthi, Advocate for R-2 (RP).

ORDER

24.05.2023: Heard learned counsel for the parties. This Appeal has

been filed against the order dated 12.05.2023 by which the Section 9

application filed by the Operational Creditor has been admitted. The

Appellant is Suspended Director of the Corporate Debtor.

2. It is submitted by learned counsel for the Appellant that even prior to

filing of the Section 9 application MOU was entered between the parties on

05.09.2019, under which MOU payment of Rs.11,53,544/- was made. It is

submitted that after filing of the application also Corporate Debtor has made

payment of Rs.6,00,000/-. It is submitted that the Appellant is ready to settle

with the Operational Creditor and an opportunity be given to the Corporate

Debtor to make settlement.

3. We have considered the submissions of learned counsel for the parties

and perused the record.

Cont'd.../ 2

4. Section 9 application was filed by the Operational Creditor claiming an

amount of Rs.1,60,82,805/-. The fact that even prior to filing of the

application an MOU was entered between the parties which was not honoured

by the Corporate Debtor, clearly indicate that the Corporate Debtor is unable

to pay the dues. After filing of the application, only Rs.6 Lakhs, as claimed

by the Appellant, does not in any manner mitigate the amount of debt and

default. Present is a case where debt and default are clearly proved, hence,

the Adjudicating Authority committed no error in admitting Section 9

application.

5. Insofar as submission of learned counsel for the Appellant that

Corporate Debtor is still willing to settle the matter, it is open for the Appellant

to enter into settlement with the Operational Creditor and file appropriate

application under Section 12A before the Adjudicating Authority, which may

be considered and decided by the Adjudicating Authority in accordance with

law. For enabling the Appellant to settle the matter, we allow 30 days' time

during which period the IRP shall not constitute the CoC, if not already

constituted. However, after 30 days in event no settlement is reached, the

IRP shall proceed to constitute the CoC and continue CIRP process in

accordance with law. Subject to above, the Appeal is dismissed.

[Justice Ashok Bhushan] Chairperson

[Barun Mitra] Member (Technical) Archana/nn

Company Appeal (AT) (Insolvency) No. 677 of 2023

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