Sunil Choudhary vs Hubergroup India Pvt Ltd & Anr

Sh. Sunil Choudhary ...Appellant

Vs.

Hubergroup India Pvt. Ltd. & Anr. ...Respondents

Present: For Appellant: - Mr. Nikhilesh Kumar and Mr. Vinod Kr.

Chaurasiya, Advocates.

For Respondents: - Mr. Ashok Kriplani, Advocate for IRP. Mr. Wamika Trehan and Mr. Milind Sharma, Advocates.

O R D E R

29.07.2019─ The Respondent- 'Hubergroup India Pvt. Ltd.' filed

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

("I&B Code" for short) for initiation of the 'Corporate Insolvency

Resolution Process' against 'Shreemataji Graphics Pvt. Ltd.'- ('Corporate

Debtor'), which was admitted by the Adjudicating Authority (National

Company Law Tribunal), Mumbai Bench, Mumbai on 6th March, 2019

against which the appeal has been preferred.

2. Earlier on 10th May, 2019, when the matter was taken up, learned

counsel for the Appellant submitted that the Appellant is negotiating for

settlement with the 'Operational Creditor' and no 'Committee of Creditors'

has been constituted.

3. On 16th July, 2019, it was stated that the parties reached the

settlement and 'Terms of Settlement' has been filed. 2

4. Mr. Ashok Kriplani, learned counsel appearing on behalf of the

'Interim Resolution Professional' accepts that the 'Committee of Creditors'

has not been constituted and the 'Terms of Settlement' reached between

the parties on 15th July, 2019 and in terms thereof the admitted dues will

be paid by the 'Corporate Debtor' within the time period shown therein.

5. The Settlement Agreement dated 15th July, 2019 reads as follows:

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6. Learned counsel for the Appellant submits that the Appellant, all

Shareholders/ Promoters and Directors and Officers of the 'Corporate

Debtor' will be bound by the 'Terms of Settlement'.

7. Learned counsel for the Respondent- 'Operational Creditor'

submits that the 'Operational Creditor' has no objection to the 'Terms of

Settlement' as agreed subject to payment should be made on time.

8. Similar plea has been taken by learned counsel appearing on behalf

of the 'Interim Resolution Professional'.

9. In view of the aforesaid development and taking into consideration

the fact that the 'Committee of Creditors' has not been constituted and

the parties have already reached the settlement in the light of the decision

of the Hon'ble Supreme Court in "Swiss Ribbons Pvt. Ltd. & Anr. vs.

Union of India & Ors.─ Writ Petition (Civil) No. 99 of 2018" and being

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satisfied, we exercise inherent power under Rule 11 of the National

Company Law Appellate Tribunal, 2016 and allow the Respondent-

'Operational Creditor' to withdraw the application under Section 9.

10. In the result, the impugned order dated 6th March, 2019 admitting

the application under Section 9 stands set aside. The 'Terms of

Settlement' should be treated to be a decision and decree of this Appellate

Tribunal. The Appellant, all Shareholders, Promoters, Directors and

Officers of 'Shreemataji Graphics Pvt. Ltd.'- ('Corporate Debtor') are

bound by the 'Terms of Settlement' and are directed to comply with the

'Terms of Settlement, failing which, it will be open to the 'Operational

Creditor' or the 'Interim Resolution Professional' to request to recall the

order and revive the 'Corporate Insolvency Resolution Process' as also for

initiation of Contempt Proceedings against the Appellant and other

Shareholders, Promoters, Directors and Officers of 'Shreemataji Graphics

Pvt. Ltd.'- ('Corporate Debtor').

11. In effect, order (s), passed by the Adjudicating Authority appointing

'Interim Resolution Professional', declaring moratorium, freezing of

account, and all other order (s) passed by the Adjudicating Authority

pursuant to impugned order and action, if any, taken by the 'Interim

Resolution Professional', including the advertisement published in the

newspaper calling for applications all such orders and actions are

declared illegal and are set aside. The application preferred by

Respondent under Section 9 of the 'I&B Code' is dismissed. Learned

Adjudicating Authority will now close the proceeding. The 'Corporate

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Debtor' (company) is released from all the rigour of law and is allowed to

function independently through its Board of Directors from immediate

effect.

12. The 'Interim Resolution Professional' will be paid as per the

Settlement. The appeal is allowed with aforesaid observation. However,

in the facts and circumstances of the case, there shall be no order as to

cost.

(Justice S.J. Mukhopadhaya) Chairperson

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

(Kanthi Narahari) Member(Technical) Ar/g

Company Appeal (AT) (Insolvency) No. 452 of 2019