Sunil Ghorawat vs Arvind Envisol Ltd. & Anr

Mr. Sunil Ghorawat ...Appellant

Vs.

M/s. Arvind Envisol Ltd. & Anr. ...Respondents

Present: For Appellant: - Mr. R.K Gupta and Mr. Vikas Lekra, Advocates.

For Respondents: - Mr. Abhijeet Sinha, Mr. Vikrant Singh, Mr. S.N. Samith, Advocates for R-1. Mr. Krunal Kghatriya, Advocate.

Mr. Swapnil Gupta and Ms. Ankita Sinha, Advocates.

ORDER

01.03.2019─ This appeal has been preferred by Mr. Sunil Ghorawat,

Director of 'M/s. Earth Water Limited'- ('Corporate Debtor'), against the

order dated 15th January, 2019 passed by the Adjudicating Authority

(National Company Law Tribunal), New Delhi (Court No. IV). By the

impugned order, the application under Section 9 of the Insolvency and

Bankruptcy Code, 2016 preferred by the Respondent- 'M/s. Arvind

Envisol Limited' has been admitted, order of 'Moratorium' has been

passed and 'Interim Resolution Professional' has been appointed.

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

the impugned order was passed ex parte without giving any notice to the

Company Appeal (AT) (Insolvency) No. 100 of 2019 2

'Corporate Debtor'. However, the same has been controverted by learned

counsel appearing on behalf of Respondent- 'M/s. Arvind Envisol

Limited'.

3. Learned counsel for the Appellant next contended that the

'Committee of Creditors' have not yet been constituted and in the

meantime, the parties have reached settlement. Two drafts for Rs.

52,23,500/- and Rs. 10,18,583/- both dated 8th February, 2019 issued

by the Union Bank of India, Sushant Lok, in the name of 'Arvind Envisol

Ltd.' are being handed over to Mr. Kunal, the authorised representative

of 'M/s. Arvind Envisol Limited'.

4. Learned counsel appearing on behalf of the Respondent and Mr.

Mukesh Kumar Grover, the 'Resolution Professional', accept that the

'Committee of Creditors' have not been constituted. Mr. Mukesh Grover,

'Resolution Professional' further submits that he has already incurred

cost of Rs. 35,000/- towards its 'Corporate Insolvency Resolution Process'

and he is entitled for fee of Rs. 2,00,000/- i.e. total Rs. 2,35,000/-.

5. Having heard learned counsel for the parties and following the

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

Anr. v. Union of India & Ors.─ 2019 SCC OnLine SC 73" (at para 52)

as we find that the parties have reached settlement prior to constitution

of the 'Committee of Creditors', we set aside the impugned order dated

15th January, 2019.

Company Appeal (AT) (Insolvency) No. 100 of 2019 3

6. 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, 2016 is dismissed as

withdrawn. Learned Adjudicating Authority will now close the

proceeding. The 'Corporate Debtor' (company) is released from all the

rigour of law and is allowed to function independently through its Board

of Directors from immediate effect.

7. 'M/s. Earth Water Limited'- ('Corporate Debtor'), will pay the fee

and cost of Rs. 2,35,000/- in favour of the 'Interim Resolution

Professional'- Mr. Mukesh Grover, within four weeks. 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 Bansi Lal Bhat) Member(Judicial) Ar/g

Company Appeal (AT) (Insolvency) No. 100 of 2019