Raghu Rama Krishna Raju vs Gandhar Oil Refinery (India) Ltd

Mr. Raghu Rama Krishna Raju ...Appellant Versus Gandhar Oil Refinery (India) Ltd. ...Respondent

Present:

For Appellant : Mr. Amit Sibal, Senior Advocate assisted by Mr. Aniridh Wadhwa and Mr. Bharagav Thali, Advocates

For Respondents : Ms. Mitali Daryani and Mr. Anush Raajan, Advocates for Respondent No. 1

Mr. Nakul Sachdeva and Mr. Aakarshan Sahay, Advocates for Respondent No. 2

Mr. C.A. Sinha, Ms. Sonali Khanna and Ms. Sylona Mohapatra, Advocates for 'Committee of Creditors'

Mr. Goutham Shivshankar and Sourabh Agarwal, Advocates for impleaded respondent

Mr. Sanjay Bajaj, Advocates for 'Financial Creditors'

Me. Nakul Sachdeva, for RP

Mr. Chitranchul Sinha and Ms. Sonali Khanna, Advocates for 'CoC'

With

Company Appeal (AT)(Insolvency) No. 553 of 2018

IN THE MATTER OF:

Mr. Raghu Rama Krishna Raju ...Appellant 2

Versus

Gandhar Oil Refinery (India) Ltd. ...Respondent

Present:

For Appellant : Mr. Amit Sibal, Senior Advocate assisted by Mr. Aniridh Wadhwa and Mr. Bharagav Thali, Advocates

For Respondents : Ms. Mitali Daryani and Mr. Anush Raajan, Advocates for Respondent No. 1

Mr. Ashish Prasad and Mr. Sanyam Saxena, Advocates for R.P.

Mr. Goutham Shivshankar and Sourabh Agarwal, Advocates for impleaded respondent

Mr. Sanjay Bajaj, Advocates for 'Financial Creditors'

ORDER

30.01.2019 In both the appeals as the appellant/shareholder is common

and common question of law is involved, they were heard together and disposed

of by this common order.

2. 'M/s. Gandhar Oil Refinery (India) Limited' (Operational Creditor -

respondent in 'Company Appeal (AT)(Insolvency) No. 552 of 2018') filed an

application under Section 9 of the Insolvency & Bankruptcy Code, 2016 for

initiation of 'corporate insolvency resolution process' against 'M/s. Ind Barath

Power Gencom Limited' (Corporate Debtor) which was admitted by the impugned

Company Appeal (AT)(Insolvency) No. 552 & 553 of 2018 3

order dated 7th September, 2018 is under challenge in 'Company Appeal

(AT)(Insolvency) No. 552 of 2018'.

3. Another application under Section 9 was filed by 'M/s. Gandhar Oil

Refinery (India) Limited against M/s. Ind-Barath Thermal Power Limited (the

other Corporate Debtor) in 'Company Appeal (AT)(Insolvency) No. 553 of 2018'

and it was also admitted by the impugned order dated 7th September, 2018.

4. Learned counsel appearing on behalf of the appellant(s) submits that there

are 'pre-existing dispute' in both the cases and thereby the application(s) under

Section 9 were not maintainable. It is further submitted that the appellants are

settling the claim with 'M/s. Gandhar Oil Refinery (India) Limited' in both the

appeals.

5. Learned counsel appearing on behalf of the 'Operational Creditor' while

disputed the ground taken by the learned counsel for the appellant that there is

a 'pre-existing dispute' and submitted that the parties have settled the claims in

both the appeals.

6. 'Resolution Professional' in both the appeals have appeared, filed their

affidavits giving details of the steps taken by them and the fee and cost incurred

by them. The 'Committee of Creditors' in both the appeals has also appeared.

7. From the record we find that there is a pre-existing dispute in respect of

'M/s. Ind-Barath Power Gencom Limited' (Corporate Debtor) of 'Company Appeal

(AT)(Insolvency) No. 552 of 2018'. In the said case, demand notice under Section

8(1) was issued on 30th October, 2017 but prior to the same, the 'Corporate

Debtor' had issued a notice to the 'Operational Creditor' for act of deceit and

dispute on the outstanding dues', which reads as follows:

Company Appeal (AT)(Insolvency) No. 552 & 553 of 2018 4

8. In other case, M/s. Ind-Barath Thermal Power Limited (the other

'Corporate Debtor) in 'Company Appeal (AT)(Insolvency) No. 553 of 2018' the

Company Appeal (AT)(Insolvency) No. 552 & 553 of 2018 5

demand notice was issued on 25th October, 2017. However, prior to the same

notice for act of deceit and dispute on the outstanding dues was issued by the

'Corporate Debtor' on 27th September, 2017, which reads as follows:

Company Appeal (AT)(Insolvency) No. 552 & 553 of 2018 6

9. In view of the fact that there was a 'pre-existing dispute' in both the cases,

we hold that the application preferred by 'M/s. Gandhar Oil Refinery (India)

Limited' against 'M/s. Ind-Barath Power Gencom Limited' (Corporate Debtor) and

'M/s. Ind-Barath Thermal Power Limited' (the other 'Corporate Debtor') were not

maintainable. We accordingly set aside the impugned orders dated 7th

September, 2018 passed by the Adjudicating Authority in the respective appeals.

The parties having settled the matter, they are bound by the 'Terms of

Settlement' and will act accordingly and it should be treated as a direction of this

Appellate Tribunal. Insofar as other creditors are concerned, we are not

expressing any opinion. They may act in accordance with law. The 'Committee

of Creditors' of respective appeals are directed to decide the fee and resolution

cost incurred by respective 'Resolution Professionals' preferably within two

weeks and communicate to the respective 'Corporate Debtors'. The 'Corporate

Debtors' will pay the cost and fees and the cost incurred for resolution process

by respective 'Resolution Professionals'. If the cost have been paid to the

'Resolution Professionals' by the 'Committee of Creditors', as informed, then the

'Committee of Creditors' will inform the respective 'Corporate Debtors', the cost

incurred towards the 'resolution fee' and 'resolution process' and the respective

'Corporate Debtors' will pay the amount to the 'Committee of Creditors' within

30 days thereof.

10. If any application of the 'Financial Creditor' or 'Operational Creditor' has

been dismissed on the ground of these appeals, they may file a fresh application

before the Adjudicating Authority, after notice to the 'Corporate Debtors' in view

of the order passed by us.

Company Appeal (AT)(Insolvency) No. 552 & 553 of 2018 7

11. Both the appeals stand disposed of with aforesaid observations and

directions. No cost.

[Justice S.J. Mukhopadhaya] Chairperson

[ Justice Bansi Lal Bhat ] Member (Judicial)

/ns/uk/

Company Appeal (AT)(Insolvency) No. 552 & 553 of 2018