Rajesh Arora vs Sanjay Kumar Jaiswal

Rajesh Arora ...Appellant

Vs

Sanjay Kumar Jaiswal ....Respondent

Present:

For Appellant: Mr. Virender Ganda, Senior Advocate along with Mr. Ayandeb Mitra, Mr. Simran and Mr. Anand Singh Sengor, Advocates

For Respondent: Mr. Abhishek Anand, Mr. Anant A Pavgi and Mr. Tushar Tyagi, Advocates

ORDER

05.11.2018 This appeal has been filed by Mr. Rajesh Arora, shareholder of

M/s Amira Pure Foods Pvt. Ltd ('Corporate Debtor') against order dated 8th

October, 2018 whereby the Adjudicating Authority (National Company Law

Tribunal), New Delhi, Court No. IV had admitted the application under Section 9

of Insolvency and Bankruptcy Code, 2016 (in short I&BC) preferred by

Respondent-Mr. Sanjay Kumar Jaiswal (Ex-employee - 'Operational Creditor').

2. Learned Senior Counsel appearing on behalf of the Appellant submits

that the application under Section 9 of I&BC was admitted without any notice to

the 'Corporate Debtor'. The Adjudicating Authority had not given any notice before

admitting the case and the impugned order had been passed in violation of rules

of Natural Justice. It is also stated that the parties have settled the matter and a

draft for Rs. 2,88,000/- has been handed over to Ms. Anushua, learned Counsel

for the 'Operational Creditor' towards rest of the amount in terms of settlement. Company Appeal(AT)(Insolvency) No. 634 of 2018 Page 1 of 3 She handed over the draft to Mr. Sanjay Kumar Jaiswal who is present in

Appellate Tribunal.

3. The Respondent has not disputed the fact that the impugned order

was passed by the Adjudicating Authority without any notice to the 'Corporate

Debtor'. This is also clear from the impugned order wherein the Adjudicating

Authority observed as follows:

"12. This Tribunal is constrained to proceed with the matter exparte in relation to the Corporate Debtor since the section 8 notice and the present application duly served on the Corporate Debtor and proof of service along with service affidavit is filed by the applicant making the service complete."

4. Mr. A. Raja Ram, learned Advocate submits that some other

'Operational Creditors' are entitled to certain payments. However, we are not

deciding such issue in the present appeal they being party to this appeal.

5. Admittedly, impugned order dated 8th October, 2018 was passed by

the Adjudicating Authority without notice to the 'Corporate Debtor' in violation of

rules of Natural Justice, we set aside the impugned order. The matter having been

settled between the parties, we are not remitting the matter back to the

Adjudicating Authority.

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

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

order(s) passed by the 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

Company Appeal(AT)(Insolvency) No. 634 of 2018 Page 2 of 3 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 '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.

7. The Adjudicating Authority will fix the fee of 'Resolution Professional'

and the 'Corporate Debtor' will pay the fees of the 'Resolution Professional', for

the period he has functioned.

8. However, the impugned order will not come in the way of other

'Operational Creditor' to move before appropriate forum for appropriate relief.

The appeal stands disposed of. No cost.

[Justice S.J. Mukhopadhaya] Chairperson

(Justice A.I.S. Cheema) Member (Judicial) Akc/Sk

Company Appeal(AT)(Insolvency) No. 634 of 2018 Page 3 of 3