Rajesh Nagpal vs Gupta Ji Electric Company & Anr

NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI I.A. No. 1118 of 2020 With Company Appeal(AT) (Insolvency) No. 388 of 2020 IN THE MATTER OF: Rajesh Nagpal Erstwhile Director, M/s Straight Edge Contracts Pvt. Ltd., B22, Swasthya Vihar, Delhi - 110 092 ...Appellant Vs 1. Gupta Ji Electric Company Respondent No. 1/ 82, Ambedkar Marg, Ghazoabad. Operational Creditor Uttar Pradesh - 201 001 / Original Applicant

2. M/s Straight Edge Contracts Pvt. Ltd. Respondent No. 2 (Through IRP Mr. Ranjit Kumar) /Corporate Debtor Ground Floor, 4, Dayanand Vihar, /Original Respondent Delhi - 110 092 ....Respondents Present: For Appellant: Mr. Aviral Kapoor, Advocates For Respondents: Mr. Ritesh Agarwal, Mr. Tejas Bhatia and Ms. Aishwarya Adlakha, Advocates for Respondent No. 1 Mr. Shailendra Singh and Mr. Abhishek Parmar, Advocates for IRP.

ORDER

13.03.2020 This matter was not on Board but has been taken up on

mentioning.

2. Heard Advocate Shri Aviral Kapoor present for the Appellant. It is stated

that the Appellant Mr. Rajesh Nagpal is also present. Advocate Shri Tejas Bhatia

who appeared for Operational Creditor before Adjudicating Authority, New Delhi

(See Impugned Order) is present on behalf of Respondent No. 1 - Gupta Ji

Electric Company- Operational Creditor. It is stated that the authorised

representative of Respondent No. 1, namely, Mr. Dhiraj Gupta is also present.

Company Appeal(AT)(Insolvency) No. 388 of 2020 Page 1 of 11 Advocate Mr. Abhishek Parmar is present on behalf of Interim Resolution

Professional (in short 'IRP')- Mr. Ranjeet Kr. Verma.

3. Learned Counsel for IRP states that Committee of Creditors (in short 'CoC')

has not yet been constituted in this matter. It is stated that the IRP has not

received claims other than from the present Operational Creditor.

4. Learned Counsel for the Appellant and Respondent No. 1 submits that

they have settled the dispute between them and the Corporate Debtor has issued

different Post-dated cheques to settle the claim of the Operational Creditor. It is

stated that post-dated cheques have also been issued to IRP to settle the Fees of

IRP including CIRP cost.

5. The learned Counsel present referred to Memorandum of Understanding

(in short 'MoU') executed between the Appellant and Respondent No. 1 and state

that the Respondent No. 1 wants to withdraw the Application which was filed

under Section 9 of Insolvency and Bankruptcy Code, 2016 (in short 'IBC') before

the Adjudicating Authority.

6. Learned Counsel for the Appellant states that the settlement has been

arrived at with the consent of other Directors and Corporate Debtor will honour

all the cheques issued and will ensure that the payments due to the IRP are also

promptly made.

7. Learned Counsel for the Appellant furthers states that IRP has been issued

cheque dated 30.03.2020 and the learned Counsel assures that the cheque

would be honoured.

8. MoU entered into between the parties is as under:

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9. The Appellant and Respondent No. 1 admit the contents of the MoU and

the same are taken on record. The parties would be bound by the contents of

this MoU.

10. Keeping in view paragraph-79 of the Judgment in the matter of "Swiss

Ribbons Pvt. Ltd & Anr. Vs. Union of India & Ors"" in Writ Petition(C) No. 99

of 2018 (2019 SCC Online SC 73), exercising powers under Rule-11 of NCLAT

Rule, 2016, we accept the MoU and we allow the Appeal and set aside the

impugned order dated 26.02.2020. The Respondent No. 1, Original Operational

Creditor is permitted to withdraw the Application which was filed under Section

9 of IBC.

11. The Appellant and the Directors of Shareholders of the Corporate

Debtor/Respondent No. 2 - M/s Straight Edge Contracts Pvt. Ltd. shall remain

bound by MoU/Agreement. In the case of default, they would be liable for action

of contempt.

12. Liberty is also given to the Respondent No. 1 as well as IRP to move this

Tribunal in case of any default on the part of Corporate Debtor in honouring the

MoU/Agreement or non-payment of fees/CIRP costs of IRP for which cheque is

stated to have been issued. If the Respondent No. 1 or IRP moves this Tribunal

complaining default, this Tribunal may recall the present order and restore the

Impugned Order.

13. In view of our Order in paragraph 10 supra, actions taken by IRP/RP in

consequence of the impugned order are quashed and set aside. The Corporate

Debtor is released from the rigour of law and is allowed to function independently

Company Appeal(AT)(Insolvency) No. 388 of 2020 Page 10 of 11 through its Board of Directors. The IRP/RP will hand back the records and

management of the affairs of Corporate Debtor, to the Board of Directors.

Appeal is disposed accordingly.

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

[Justice Anant Bijay Singh] Member (Judicial)

(Kanthi Narahari) Member(Technical) Akc/Mn

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