Sukhbeer Singh vs Dinesh Chandra Agarwal Rp, Maple ...

Sukhbeer Singh, Ex-Director, Maple Realcon Private Limited ...Appellant

Vs.

Mr. Dinesh Chandra Agarwal Resolution Professional, Maple Realcon Pvt. Ltd. & Ors. ...Respondents

Present: For Appellant: - Mr. Mrinal Harsh Vardhan and Mr. Kartik Sarin, Advocates.

Mr. Johnson Subba and Mr. Nakul Mohta, Advocate for Resolution Applicant.

For Respondents: - Ms. Anju Jain, Ms. Namita Jose, Ms. Prachie Jain and Ms. Riya Dhingra, Advocates for R-3. Mr. Prabhat Kumar, Mr. Rajesh Kumat, Advocates. Mr. Shobhan Mahanti, Advocate.

O R D E R

04.09.2019─ The 'Corporate Insolvency Resolution Process' against

'M/s. Maple Realcon Pvt. Ltd.'- ('Corporate Debtor'), a Real Estate

Company, was initiated on 18th July, 2018. Public announcement was

made on 27th July, 2018 and the claims were verified on 14th August,

2018. In the said case, the Appellant- Mr. Sukhbeer Singh, Director of

the 'Corporate Debtor' jointly filed an application along with the

'Operational Creditor' praying for termination of the 'Corporate

Insolvency Resolution Process' in view of the settlement arrived at

between the parties.

Company Appeal (AT) (Insolvency) No. 259 of 2019 2

2. It was brought to the notice of the Adjudicating Authority (National

Company Law Tribunal), New Delhi Bench, that the said settlement was

reached on 30th July, 2018. However, it is not disputed that while the

application under Section 9 of the Insolvency and Bankruptcy Code, 2016

("I&B Code:" for short) was admitted on 18th July, 2018, no such plea was

taken by the 'Corporate Debtor' at that point of time.

3. Learned counsel for the Appellant submits that the said order was

passed ex parte. However, it is not in dispute that the 'Operational

Creditor' appeared but he had not stated that already matter has been

settled. In any case, the Adjudicating Authority taking into consideration

the fact that there are large number of allottees who have filed the claims

and by impugned order dated 22nd February, 2019, refused to exercise

inherent power under Rule 11 of the National Company Law Tribunal

Rules, 2016 and allowed the Appellant to take advantage of Section 12A

of the 'I&B Code' to enable the 'Operational Creditor' to withdraw the

application if the 'Committee of Creditors' with 90% of the voting shares

approved the proposal.

4. The present appeal was kept pending for decision by the

'Committee of Creditors' and it is informed that the 'Committee of

Creditors' has not approved the proposal under Section 12A as at least

90% of the voting shares is required.

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

the 'Committee of Creditors' has not explained the viability and feasibility

Company Appeal (AT) (Insolvency) No. 259 of 2019 3

about Section 12A proposal, but we are not inclined to accept such

submissions for the following reasons:

(i) The question of going into the viability, feasibility and the

conditions as prescribed by the 'Insolvency and Bankruptcy Board

of India' relates to 'Corporate Debtor'; and

(ii) Such question of viability and feasibility and other condition

prescribed by the Board relates to 'Resolution Plan' and not the

proposal for settlement under Section 12A.

6. The case in hand do not relate to 'Resolution Plan' but relates to

application under Section 12A, therefore, the aforesaid question of

viability and feasibility not required to be mentioned while approving or

rejecting the proposal under Section 12A.

7. For the aforesaid reasons, we are not inclined to remit the matter

to the 'Committee of Creditors' for reconsideration of the same.

8. This apart, as more than 330 days have already crossed after

initiation of the 'Corporate Insolvency Resolution Process' (admitted on

18th July, 2018), we are not inclined to grant any relief as sought for. The

appeal is dismissed. No costs.

(Justice S.J. Mukhopadhaya) Chairperson

(Justice A.I.S. Cheema) Member(Judicial)

(Kanthi Narahari) Member(Technical) Ar/g

Company Appeal (AT) (Insolvency) No. 259 of 2019