Rajan Gupta vs Ashok Kumar Sharma & Anr

Rajan Gupta .... Appellant

Vs

Ashok Kumar Sharma & Anr. .... Respondents

Present: For Appellant: Ms. Anjali Jain, Advocate.

For Respondent: Mr. Sagar Aggarwal, Advocate for Respondent No.1.

Ms. Divyagattani, Advocate with Mr. Vivek Raheja, Respondent No.2.

ORDER

30.05.2019 This Appeal has been preferred by Rajan Gupta, Director/

Shareholder of Bhola Baba EXIM Pvt. Ltd. against order dated 16th May, 2019

passed by the Adjudicating Authority (National Company Law Tribunal), New

Delhi Bench admitting application under Section 9 of the Insolvency and

Bankruptcy Code, 2016 (I&B Code) filed by Respondent-Ashok Kumar

Sharma, Proprietor, Alloysmin Industries.

2. On 27th May, 2019, when the matter was taken up, learned Counsel

for the Appellant submitted that the parties have reached settlement on 22nd

May, 2019 and enclosed the Settlement Agreement at Page-50. A Draft of

Rs.13,22,927/- in terms of such settlement was also brought and it was

informed that the 'Committee of Creditors' has not been constituted. We

Company Appeal (AT) (Insolvency) No. 572 of 2019 Page 1 of 3 adjourned the matter allowing the Counsel for the Respondent ('Operational

Creditor') to file affidavit and to inform the 'Interim Resolution Professional'.

3. Pursuant to earlier order an affidavit has been filed by 1st Respondent

('Operational Creditor') admitting that the parties reached settlement on 22nd

May, 2019, that was prior to the constitution of the 'Committee of Creditors'.

Mr. Vivek Raheja, 'Interim Resolution Professional' along with Ms.

Divyagattani, Advocate has appeared. It is accepted that the 'Committee of

Creditors' has not yet been constituted. It is informed that the 'Interim

Resolution Professional' has already performed duty for more than 10 days

and incurred cost of Rs.12,000/-.

4. Taking into consideration the facts and circumstances of the case, we

allow the settlement.

5. Learned Counsel for the Appellant has handed over a draft of Punjab

National Bank, Vazirpur (Ashok Vihar) Delhi Branch, bearing No.365883

dated 22nd May, 2019 for a sum of Rs.13,22,927/- issued in the name of

Alloysmin Industries to Counsel for the Respondent for onward transmission

to 'Operational Creditor'.

6. In the facts and circumstances, we assess the fee and cost of the

'Interim Resolution Professional' at Rs.1,22,000/-. The Appellant will hand

over a cheque to the 'Interim Resolution Professional' in the course of the

day.

7. In view of the aforesaid development, we set-aside the impugned order

dated 16th May, 2019 and allow Respondent No.1 to withdraw the application

Company Appeal (AT) (Insolvency) No. 572 of 2019 Page 2 of 3 under Section 9, which stands disposed of as withdrawn. The Adjudicating

Authority will close the proceedings.

8. In effect, order(s), passed by the Adjudicating Authority appointing any

'Interim Resolution Professional', declaring moratorium, freezing of account,

and all other order (s) passed by the Adjudicating Authority pursuant to

impugned order and action, if any, taken by the 'Interim Resolution

Professional', including the advertisement, if any, 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. Learned Adjudicating

Authority will now close the proceeding. The appellant 'Corporate Debtor'

(company) is released from all the rigour of law and is allowed to function

independently through its Board of Directors from immediate effect.

9. The appeal is allowed with aforesaid observations. However, in the

facts and circumstances of the case, there shall be no order as to cost.

[Justice S. J. Mukhopadhaya] Chairperson

[Justice A.I.S. Cheema] Member (Judicial)

[Kanthi Narahari] Member (Technical) Ash/GC

Company Appeal (AT) (Insolvency) No. 572 of 2019 Page 3 of 3