Prem Sagar Mishra vs Orissa Stevedores Ltd. & Anr

Prem Sagar Mishra ...Appellant Vs Orissa Stevedores Ltd. & Anr. ....Respondents

Present: For Appellant: Mr. Shovan Mishra, Advocate. For Respondents: Mr. Rajnish Sinha and Ms. Shreya Kohli, Advocates.

ORDER

07.08.2018: This appeal was preferred by Appellant against order dated 20th February, 2018 passed by the Adjudicating Authority (National Company Law Tribunal) Kolkata Bench in C.P.(I.B.) No. 729/KB/2017, admitting the application under Section 9 of the Insolvency and the Bankruptcy Code, 2016 (hereinafter referred to as 'I&B Code'), declaring moratorium and appointing Interim Resolution Professional.

2. During the pendency of the case, the parties reached settlement and on 01.08.2018 it was informed by learned counsel for the Appellant, which is recorded as follows:

"ORDER

01.08.2018- It is informed by learned counsel appearing on behalf of the appellant that the matter has been settled and 'Committee of Creditors' have also passed order in terms of voting rights of more than 90% and therefore, an order can be passed under Section 12-A of the Insolvency and Bankruptcy Code, 2016 (for short 'I & B Code' 2016).

He prays for and allowed to file an affidavit enclosing the copy of terms of settlement by 3rd August, 2018.

Post the case 'for orders' on 7th August, 2018."

-2- 3. Affidavit has been filed by the Appellant enclosing minutes of the 4th meeting of the Committee of Creditors of the 'Orissa Stevedores Ltd.' (Corporate Debtor). The meeting was held on 26.07.2018, therein the following decision has been taken by the Committee of Creditors:

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4. It is informed that the Resolution Professional has also filed an application before the Adjudicating Authority, Kolkata Bench for withdrawal of the pending petition.

5. Taking into consideration the aforesaid development and in terms of Section 12A and it is always open to the Committee of Creditors with 90% majority voting share to allow the applicant to withdraw a petition, and applicant has filed application for withdrawal of the application, we set aside the impugned order dated 20th February, 2018 passed in C.P.(I.B.) No. 729/KB/2017 and direct the Adjudicating Authority to treat the application disposed of as withdrawn.

6. In effect, order(s) passed by Ld. Adjudicating Authority appointing '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 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 as withdrawn. The 'Corporate Debtor' is released from all the rigour of law and is allowed to function independently through its Board of Directors from immediate effect.

7. Learned Adjudicating Authority will fix the fee of the 'Resolution Professional', and the 'Corporate Debtor' will pay the fees, and other cost incurred by him.

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8. The parties are directed to comply with the terms and conditions on the basis of which the Committee of Creditors allowed to withdraw the application. The appeal is allowed with aforesaid observation and direction. No Cost.

[Justice S. J. Mukhopadhaya] Chairperson

[Justice Bansi Lal Bhat] Member (Judicial)

am/gc

Company Appeal (AT) (Insolvency) No. 116 of 2018