Sujeet Suresh Shah vs Savino Del Bene Freight Forwarders ...
- CitationCompany Appeal (AT) (Insolvency) No. 1051 of 2019
Ratio decidendi
The rule this decision rests on
The Appellate Tribunal may, under Rule 11 of the NCLAT Rules, 2016, set aside an order of admission of a corporate insolvency resolution process and dispose of an operational creditor's Section 9 application as withdrawn where, before the Committee of Creditors has been constituted, the corporate debtor's shareholder undertakes before the Tribunal to pay the defaulted amount and the interim resolution professional's fees and costs in instalments, and the operational creditor agrees to accept that settlement. The Tribunal may make the shareholder's undertaking binding by treating it as a direction of the Appellate Tribunal, with the consequence that the corporate insolvency resolution process may be restored if the undertaking is not complied with.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
Sujeet Suresh Shah ...Appellant
Vs
Savino Del Bene Freight Forwarders India Pvt. Ltd. ....Respondents & Anr.
Present: For Appellant: Mr. Debopriyo Moulik, Advocate.
For Respondents: Ms. Surekha Raman and Mr. Purushottam Kr. Jha, Advocates for R-1. Mr. Shikhil Suri, Mr. Shiv Kumar Suri and Ms. Shilpa Saini, Advocates for IRP.
ORDER
02.01.2020: 'Savino Del Bene Freight Forwarders India Pvt. Ltd.'
(Operational Creditor) filed application under Section 9 of the Insolvency and
Bankruptcy Code, 2016 pursuant to which the Adjudicating Authority (National
Company Law Tribunal), Mumbai Bench, by impugned order dated 17th
September, 2019 initiated Corporate Insolvency Resolution Process against
'Olive Tree Trading Private Limited' (Corporate Debtor).
2. When the matter was taken up, learned counsel for the Appellant, a
Shareholder of the Corporate Debtor, submitted that Appellant has agreed to pay
the default amount and settle the matter, the Committee of Creditors having not
been constituted in the meantime.
Company Appeal (AT) (Insolvency) No. 1051 of 2019 -2-
3. On notice, counsel for Respondent - 'Savino Del Bene Freight Forwarders
India Pvt. Ltd.' (Operational Creditor) has appeared and counsel for Interim
Resolution Professional has also appeared. The counsel for Interim Resolution
Professional submits that Interim Resolution Professional has received six claims
but Committee of Creditors has not been constituted.
4. Appellant in its affidavit dated 20th December, 2019 has made the
following statement and given following undertaking:-
"2. I undertake, as stated before this Hon'ble Tribunal on
16.12.2019, to pay the amounts mentioned hereinbelow
towards full and final settlement of all outstanding dues of
Respondent No.1:
a. An amount of Rs.5,06,051/- (Rupees Five Lakhs Six
Thousand and Fifty One Only) payable by 31st
December, 2019; and
b. An amount of Rs.5,06,050/- (Rupees Five Lakhs Six
Thousand and Fifty Only) payable by 15th of January,
2020; and
c. An amount of Rs.5,00,000/- (Rupees Five Lakhs only)
which includes interest and the IRP Fees as claimed by
the Respondent payable by 28th February, 2020.
Company Appeal (AT) (Insolvency) No. 1051 of 2019 -3-
3. I undertake to abide by the aforementioned terms of
payment and further undertake to pay the same on or before
the aforementioned due dates. I state that the same shall be
towards the full and final settlement of all outstanding dues
payable to the Respondent No. 1."
5. Another affidavit has been filed by 1st Respondent - 'Savino Del Bene
Freight Forwarders India Pvt. Ltd.' (Operational Creditor), wherein following
statement has been made:-
"2. I say that this Hon'ble Tribunal by order dated
16.12.2019 has inter alia directed Respondent to state as to
whether it intends to accept the defaulted amount of
Rs.10,12,101/- in two equal instalments, first instalment to be
paid by the Appellant by 31.12.2019 and second instalment
by 15.01.2020 and the balance amount restricted to Rs.5
lakhs which includes the fee of IRP by 28.02.2020.
3. I say that Respondent intends to accept the defaulted
amount as well the balance in instalments as suggested by
this Hon'ble Tribunal and agreed to by the Appellant."
Company Appeal (AT) (Insolvency) No. 1051 of 2019 -4-
6. In view of the fact that the parties have reached the settlement as above,
which undertakes to pay fee and cost of the Interim Resolution Professional, and
that the Committee of Creditors have yet not been constituted, we in exercise of
power conferred under Rule 11 of NCLAT Rules, 2016 set aside order of
admission dated 17th September, 2019 passed by the Adjudicating Authority
(National Company Law Tribunal), Mumbai Bench and dispose of application
under Section 9 filed by 'Savino Del Bene Freight Forwarders India Pvt. Ltd.'
(Operational Creditor) as withdrawn. The Appellant is directed to comply with
the undertaking given before this Appellate Tribunal and it should be treated as
direction of this Appellate Tribunal, failing which Corporate Insolvency
Resolution Process may be restored. The parties are directed to pay the fee and
cost of the Interim Resolution Professional on prorata basis, as provided in Terms
of Agreement. The Corporate Debtor - 'Olive Tree Trading Private Limited' is
released from the rigour of Corporate Insolvency Resolution Process. The appeal
is allowed with aforesaid observations and actions.
[Justice S. J. Mukhopadhaya] Chairperson
[Justice Bansi Lal Bhat] Member (Judicial) am/gc
Company Appeal (AT) (Insolvency) No. 1051 of 2019
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