Rajneesh Nagar vs Anuj Saxena & Anr

Present: For Appellant : Mr. Virendra Ganda, Senior Advocate assisted by Mr. P.K. Mittal, Ms. Nibruti Samal and Ms. Shreya Jain, Advocates

ORDER

26.03.2018 This appeal has been preferred by Mr. Rajneesh Nagar,

Director of M/s. Bulland Realtor Pvt. Ltd. (Corporate Debtor) against order dated

6th March, 2018 passed by the Adjudicating Authority (National Company Law

Tribunal), New Delhi Bench whereby and whereunder an application preferred

by 1st Respondent Mr. Anuj Saxena under Section 7 of the Insolvency and

Bankruptcy Code, 2016 (hereinafter referred to as the ' I&B Code') has been

admitted, order of moratorium has been passed and the Resolution Professional

has been appointed with certain directions.

2. Earlier, when the matter was taken up learned counsel for the appellant

submitted that the application under Section 7 was not maintainable. There 2

being no default, as the 'Corporate Debtor' had earlier handed over post-dated

cheques in favour of the 1st Respondent.

3. On notice, Mr. S. N. Gautam, Advocate appeared on behalf of 1st

Respondent. It is accepted that the post-dated cheques were handed over to the

1st Respondent prior to filing of the application under Section 7. The aforesaid

fact was not brought to the notice of the Adjudicating Authority. In the

meantime, one Mr. Sunil Kumar Pathak, Resolution Professional has been

appointed and taken charge of the 'Corporate Debtor'.

4. A joint affidavit has been filed by the parties showing therein 'the terms of

compromise', relevant portion of which reads as follows:

"3. That the Appellants shall pay total of

Rs.32,75,000/- (Rupees Thirty Two Lakh Seventy

Five Thousand only), Rs. 7,00,000/- (Seven Lakh

Only) in terms of the settlement deed dated 08 th

March, 2018, which is on record at page No. 112 of

present Appeal. Respondent has already in

possession of Cheque of Rs. 25 lacs being cheque

No. 000104 payable at Bank of India Deoli

Khanpur Branch, New Delhi. That the Appellant

and its Directors undertake that aforesaid cheque

of Rs. 25 lacs shall be cleared on or before

30.04.2018. Another cheque of Rs. 75000/-, being

Cheque No. 000564 dated 29.03.2018, payable at

Company Appeal (AT) (Insolvency) No. 92 of 2018 3

Bank of India Branch - Deoli Khanpur, Delhi is

given to the Respondent.

4. That Appellant and Respondent based on the

compromise and the undertaking, which has been

given before this Hon'ble Appellant Tribunal by the

Director of the Appellant Company, through

affidavit, now wishes that the appeal may kindly

be allowed by setting aside order dated 6.3.2018

but, however, without prejudice to the rights of the

Respondent No. 1 Mr. Anuj Saxena to receive a total

sum of Rs. 25,75,000 (Rs. Twenty Five Lacs

Seventy Five Thousand only) on or before

30.04.2018 from the appellant No. 1 and/or M/s.

Bulland Realtors (P) Ltd.

5. All the payments, cost etc. which is to be made to

Insolvency Resolution Professional shall be borne

and paid by M/s. Bulland Realtors (P) Ltd.

6. That the present Joint Application is made in the

interest of justice and is bonafide.

5. Having heard the learned counsel for the parties and taking into

consideration the fact that the 1st Respondent had received the post-dated

cheques prior to filing of application under Section 7, we are of the view that the

application preferred by the respondents was not maintainable.

Company Appeal (AT) (Insolvency) No. 92 of 2018 4

6. For the reasons aforesaid and in view of the joint compromise petition filed

by the parties, we set aside the order dated 6th March, 2018 passed by the

Adjudicating Authority. The terms of the compromise be treated to be directions

of this Appellate Tribunal. On failure it will be open to the 1st Respondent to file

an application under Section 7 as also a petition for initiating contempt

proceedings.

7. As agreed by Mr. Virendra Ganda, learned Senior Counsel for the appellant

and Mr. Sunil Kumar Pathak, Resolution Professional, the Corporate Debtor will

pay a lump sum of Rupees Five Lakhs towards fee of the Resolution Professional

and additional sum of Rs. One Lakh towards expenses within ten days. The

appeal stands disposed of with the aforesaid observation and directions. No cost.

[Justice S.J. Mukhopadhaya] Chairperson

[ Justice Bansi Lal Bhat ] Member (Judicial)

/ns/gc

Company Appeal (AT) (Insolvency) No. 92 of 2018