Sunil Kumar Rishi vs Debashis Chakravarty

Sunil Kumar Rishi ...Appellant

Vs.

Debashis Chakravarty ...Respondent

Present: For Appellant: - Mr. Ratnanko Banerji, Senior Advocate with Mr. R. Sudhinder and Ms. Amrita Sarkar, Advocates.

For Respondent:- Mr. Gursat Singh and Mr. Daniel George, Advocates.

ORDER

08.01.2019─ The Appellant, Director of 'Stone India Ltd.'-

('Corporate Debtor') has preferred this appeal against the order dated 17th

July, 2018, passed by the Adjudicating Authority (National Company Law

Tribunal), Kolkata Bench, Kolkata, whereby and whereunder, the

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

("I&B Code" for short) preferred by the Respondent- Mr. Debashis

Chakravarty, erstwhile CEO and Managing Director of the 'Corporate

Debtor' has been admitted, order of 'Moratorium' has been passed and

'Interim Resolution Professional' has been appointed.

Contd/-................

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2. Mr. Ratnanko Banerjee, learned Senior Counsel appearing on

behalf of the Appellant submits that there was pre-existence dispute

which was brought to the notice of the Adjudicating Authority, but in

spite of the same, the application under Section 9 of the 'I&B Code' has

been admitted. It is also informed that the parties in the meantime has

settled the claim.

3. Mr. Daniel George, learned counsel appearing on behalf of the

Respondent while accepts that the settlement has been reached between

the parties, informed that the 'Resolution Process' has progressed and

'Resolution Plans' have already been submitted by different 'Resolution

Applicants'.

4. From the record, we find that demand notice under Section 8(1) of

the 'I&B Code' was issued by the Respondents on 23rd October, 2017, but

much prior to the same an e-mail was sent by the Respondent on 5th May,

2017 which was brought to the notice of the Adjudicating Authority.

Learned counsel for the 'Corporate Debtor' submits that the Respondent

demanded commission from the tenderer, who submitted tender for the

sale of elevators to the 'Corporate Debtor'.

Company Appeal (AT) (Insolvency) No. 482 of 2018 -3-

5. It is submitted that in view of such e-mail addressed by the

Respondent demanding commission from the tenderer enquiry was

made. E-mail dated 5th May, 2017 was enclosed as Annexure "B", but in

spite of the same, the Adjudicating Authority admitted the application

under Section 9, without looking into the pre-existence dispute relating

to such demand of commission and the question whether demand of

commission was justified or not; cannot be decided by the Adjudicating

Authority or by this Appellate Tribunal, we are of the opinion it was not

a fit case for admission.

6. In this circumstances, we have no other option but to set aside the

impugned order dated 17th July, 2018 passed by the Adjudicating

Authority, Kolkata Bench, Kolkata, in CP (IB) No. 203/KB/2018. The

same is, accordingly, set aside. The parties having settled the matter, we

direct the parties to act in terms with settlement which should be treated

to be a direction of this Appellate Tribunal.

7. 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 taken by the 'Interim Resolution

Professional', including the advertisement published in the newspaper

Company Appeal (AT) (Insolvency) No. 482 of 2018 -4-

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 Debtor' is released from all

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

Board of Directors from immediate effect.

8. The Adjudicating Authority will fix the fee of 'Interim Resolution

Professional' and the 'Corporate Debtor' will pay the fees of the 'Interim

Resolution Professional' for the period he has functioned. 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. 482 of 2018