Santasha Real Estate Private Limited vs Vani Advertising & Anr

NATIONAL COMPANY LAW APPELLATE TRIBUNAL, PRINCIPAL BENCH, NEW DELHI Company Appeal (AT) (Ins) No. 428 of 2022

IN THE MATTER OF: Santasha Real Estate Pvt. Ltd. Through Its Authorized Representative /One of its Director ...Appellant

Vs.

Vani Advertising & Anr. ...Respondent

Present: For Appellant : Mr. Prince Jain and Mr. Siddharth Jangid, Advocates For Respondents : Mr. Gunajan Mittal, IRP/R2

ORDER

(Virtual Mode)

22.07.2022 : Heard Learned counsel for the parties.

Learned counsel for the Appellant submits that a settlement has been

arrived at vide 'Settlement Agreement' dated 13.05.2022 between the Appellant-

Santasha Real Estate Pvt Ltd through one its 'Director' 'Mr. Mohit Gupta' and

the Respondent No.1- M/s. Vani Adverstising through 'sole proprietor' 'Mr. Vinay

Kumar'.

Company Appeal (AT) (Ins) No. 428 of 2022

1 As per I.A No. 2348 of 2022 vide Clause No.6 (C) the parties have agreed

to settle their dispute at full and final payment of Rs. 20 Lakhs appearing at page

14 of the above IA.

The 'Settlement Agreement' vide clause 12 provides as follows towards

payments of the claim and expenses of 'Interim Resolution Professional' (IRP):

"Clause 12- That it has been also agreed between the

parties that the first party will bear the claim and expense of IRP

to the tune of Rs. 25,000/- directly payable to the IRP. Any

amount due towards the IRP over and above Rs. 25,000/- shall

be paid by the second party directly to the IRP."

It has been brought to our notice by the Ld counsel for the Appellant that

the Appellant has paid the entire sum of Rs. 20 Lakhs to the Operational Creditor

/ Respondent No.1 within prescribed time, however the Respondent No.1 is not

complying with the terms of settlement and is not taking necessary action for

filing a withdrawal application through the IRP.

The IRP/ Respondent No.2 has also confirmed the same that they have not

yet received the necessary application from the Operational Creditor/R1 to

progress the matter for withdrawal of application as also their fees are still due.

Ld. Counsel for the Respondent No.1 didn't controvert with the

submissions.

Company Appeal (AT) (Ins) No. 428 of 2022

2 Section 12A of the I&B Code r/w Regulation 30A of IBBI (Insolvency

Resolution Process for Corporate Persons) Regulations 2016 provides for

the provisions and mechanism for the withdrawal of application and the

same are reproduced below for ease of convenience:

"Section 12A- Withdrawal of application admitted

under section 7, 9 or 10.

12A. The Adjudicating Authority may allow the

withdrawal of application admitted under section 7 or section

9 or section 10, on an application made by the applicant with

the approval of ninety per cent. voting share of the committee

of creditors, in such manner as may be prescribed."

Regulation 30A of IBBI (Insolvency Resolution Process for Corporate

Persons) Regulations 2016:

"30 A. Withdrawal of application.

(1) An application for withdrawal under section 12A may be

made to the Adjudicating Authority -

(a) before the constitution of the committee, by the applicant

through the interim resolution professional;

(b) after the constitution of the committee, by the applicant

through the interim resolution professional or the resolution

professional, as the case may be:

Provided that where the application is made under clause (b)

after the issue of invitation for expression of interest under

Company Appeal (AT) (Ins) No. 428 of 2022

3 regulation 36A, the applicant shall state the reasons justifying

withdrawal after issue of such invitation.

(2) The application under sub-regulation (1) shall be made in

Form FA of the Schedule accompanied by a bank guarantee-

(a) towards estimated expenses incurred on or by the interim

resolution professional for purposes of regulation 33, till the date

of filing of the application under clause (a) of subregulation (1);

or

(b) towards estimated expenses incurred for purposes of clauses

(aa), (ab), (c) and (d) of regulation 31, till the date of filing of the

application under clause (b) of sub-regulation (1).

(3) Where an application for withdrawal is under clause (a) of

sub-regulation (1), the interim resolution professional shall

submit the application to the Adjudicating Authority on behalf of

the applicant, within three days of its receipt.

(4) Where an application for withdrawal is under clause (b) of

sub-regulation (1), the committee shall consider the application,

within seven days of its receipt.

(5) Where the application referred to in sub-regulation (4) is

approved by the committee with ninety percent voting share, the

resolution professional shall submit such application along with

the approval of the committee, to the Adjudicating Authority on

behalf of the applicant, within three days of such approval.

Company Appeal (AT) (Ins) No. 428 of 2022

4 (6) The Adjudicating Authority may, by order, approve the

application submitted under subregulation (3) or (5).

(7) Where the application is approved under sub-regulation (6),

the applicant shall deposit an amount, towards the actual

expenses incurred for the purposes referred to in clause (a) or

clause (b) of sub-regulation (2) till the date of approval by the

Adjudicating Authority, as determined by the interim resolution

professional or resolution professional, as the case may be,

within three days of such approval, in the bank account of the

corporate debtor, failing which the bank guarantee received

under sub-regulation (2) shall be invoked, without prejudice to

any other action permissible against the applicant under the

Code.]"

Accordingly, after hearing the parties, we observe it prudent to remand

back the matter to the Adjudicating Authority for taking necessary action for

withdrawal of application in accordance with the provision of law as it also

involves the determination and payment of fees to IRP. It is also a settled law

that provision of the Code is not to be used as a means for chasing of payments

(The Hon'ble Supreme Court in Civil Appeal No.9597 of 2018, Transmission

Corporation of Andhra Pradesh limited Vs. Equipment Conductors and Cables

Limited - para 15). The object of the Code is to improve ease of doing business.

Company Appeal (AT) (Ins) No. 428 of 2022

5 Hence, we are remanding back the matter to the Adjudicating Authority to

dispose of the case within a period of eight weeks and till then the order passed

by this Tribunal dated 21.04.2022 will remain in force.

With these observations and directions, IA No. 2348 of 2022 & CA(AT)(Ins)

No. 428 of 2022 is disposed of. No order as to costs.

[Justice Rakesh Kumar] Member (Judicial)

(Dr. Ashok Kumar Mishra) Member(Technical)

Raushan/GC

Company Appeal (AT) (Ins) No. 428 of 2022

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