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Sanju Rajendra Kashyap vs Shri Shankar Menon

National Company Law Appellate Tribunal25 January 2019

Ratio decidendi

The rule this decision rests on

The Tribunal holds that where an application under Section 9 of the Insolvency and Bankruptcy Code has been complete in Form 5, the operational creditor has shown a default in payment of debt, and no pre-existing dispute is shown, the Adjudicating Authority's admission of the application is not illegal and will not be interfered with in appeal. A settlement of the claim between the parties, and the inability of a shareholder to pay the settled amount because the Corporate Debtor's accounts are under the control of the Insolvency Resolution Professional, do not by themselves displace the admission order; the appellate court will not interfere on those grounds. An order admitting the insolvency application does not preclude a shareholder of the Corporate Debtor from seeking the benefit of Section 12A of the Code (withdrawal of the application) or from approaching an appropriate forum for relief.

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHICompany Appeal (AT) (Insolvency) No. 85 of 2019IN THE MATTER OF:

Sanju Rajendra Kashyap ...Appellant

Vs

Shri Shankar Menon ....Respondent

Present: For Appellant: Mr. Aabhas Parimal, Mr. Ashutosh Thakur, Mr. Dipendra Singh, Mr. R. Prashant and Ms. Tanya Choudhary, Advocates. For Respondent:

ORDER

25.01.2019: This appeal has been preferred by shareholder of 'M/s Ram

Agri-Infra India Pvt. Ltd.' (Corporate Debtor) against order dated 28th December,

2018 passed by the Adjudicating Authority (National Company Law Tribunal),

Mumbai Bench whereby the application under Section 9 filed by Respondent has

been admitted.

2. Learned counsel appearing on behalf of the Appellant submits that the

parties have settled the claim on 11th January, 2019 and earlier the Adjudicating

Authority has stayed the order to enable the parties to settle. He stated that the

accounts of the Corporate Debtor having taken care by the Insolvency Resolution

Professional, the Appellant is not able to pay the settled amount.

3. In the present case, as we find that the application under Section 9 has

been admitted, Form-5 being complete and there being a default in payment of -2-

debt, having no pre-existing dispute and in absence of any illegality we are not

inclined to interfere with the impugned order dated 28th December, 2018.

However, this order will not come in the way of the Appellant/shareholder(s) to

take advantage of Section 12A of the I&B Code or to move before an appropriate

forum for an appropriate relief. The appeal stands disposed of with aforesaid

observations. No costs.

[Justice S. J. Mukhopadhaya] Chairperson

[Justice Bansi Lal Bhat] Member (Judicial) am/uk

Company Appeal (AT) (Insolvency) No. 85 of 2019

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