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Sujeet Suresh Shah vs Savino Del Bene Freight Forwarders ...

National Company Law Appellate Tribunal2 January 2020

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of a corporate insolvency resolution process and dispose of an operational creditor's Section 9 application as withdrawn where, before the Committee of Creditors has been constituted, the corporate debtor's shareholder undertakes before the Tribunal to pay the defaulted amount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

NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHICompany Appeal (AT) (Insolvency) No. 1051 of 2019IN THE MATTER OF:

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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