Suraj Awana vs Anand Prakash & Anr
- CitationCompany Appeal (AT) (Insolvency) No. 1253 of 2019
Ratio decidendi
The rule this decision rests on
The Tribunal's order rests on the following reasoning. Where an application under Section 9 of the Insolvency and Bankruptcy Code, 2016 was admitted on a demand notice issued beyond three years from the date the claim accrued, the claim is barred by limitation and the application is not maintainable, so the admission order cannot stand. Where the operational creditor and the corporate debtor's side have reached a settlement and the operational creditor has been paid, the Tribunal may set aside the admission order and dismiss the Section 9 application on that basis, and may direct the consequential release of the corporate debtor and the handing back of its assets and records to the promoter or directors, with the Interim Resolution Professional's fees and costs met from the corporate debtor and the appellant shareholder.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
Mr. Anand Prakash & Anr. ...Respondents
Present: For Appellant : Mr. Abhishek Kumar, Advocate
For 1st Respondent: Mr. Akhil Shankhwar, Advocate
For 2nd Respondent : Mr. Gautam Singhal, Advocate with Mr. Rajesh Kumar Gupta, Interim Resolution Professional
ORDER
03.01.2020 Mr. Anand Prakash (Operational Creditor), an ex-employee of
'M/s. Omega Infrabuild Private Limited' (Corporate Debtor), filed an application
under Section 9 of the 'Insolvency and Bankruptcy Code, 2016' ('I&B Code', for
short) which was admitted by the Adjudicating Authority (National Company Law
Tribunal), New Delhi (Court No. IV) by judgment dated 17th October, 2019.
2. When the matter was taken up, the case was argued on merit and it was
contended that the claim is barred by limitation and, therefore, the application
under Section 9 of the 'I&B Code' was not maintainable. It is pointed out that
the ex-employee has asked for the claims prior to 3rd September, 2015 whereas
the Demand Notice has been issued on 11th December, 2018 i.e. beyond the
period of 3 years. It was also submitted that the Appellant is ready to settle the 2
dues, if any, with the Respondent - 'Mr. Anand Prakash'. The allottees will
suffer, if the 'Corporate Debtor' goes for insolvency resolution process or
liquidation.
3. Prima facie, having found that the application under Section 9 was barred
by limitation, we issued notice and allowed the parties to settle the matter.
4. Today, it is informed that the parties have reached the settlement. A copy
of the 'Terms of Settlement' dated 2nd January, 2020 has been produced, which
is kept on record. The payment has been made in terms of the settlement to 'Mr.
Anand Prakash', which is also accepted by Mr. Akhil Shankhwar, Advocate
appearing on behalf of the Respondent.
5. Mr. Gautam Singhal, Advocate appears along with Mr. Rajesh Kumar
Gupta, Interim Resolution Professional, submits that the 'Interim Resolution
Professional has functioned for about 2 months and 10 days. He further submits
that the 'Committee of Creditors' have not been constituted and he has received
85 claims, which includes 69 allottees. He has also incurred a cost of
Rs.82,190/- for publication etc.
6. Taking into consideration that the Respondent has reached settlement and
on merits, we set aside the impugned order dated 17th October, 2019 passed by
the Adjudicating Authority (National Company Law Tribunal), New Delhi and
assess the fees of the 'Interim Resolution Professional' at Rs.1,50,000/- per
month and for 10 days Rs.75,000/- plus actual cost of Rs.82,190/- (i.e. Total of
Rs.3,75,000 + 82,190 = Rs.4,57,190/-). The 'Interim Resolution Professional'
has already received a sum of Rs. 2,00,000/- from 'Mr. Anand Prakash'
(Operational Creditor), which has been repaid by the Appellant - Shareholder of
Company Appeal (AT) (Insolvency) No. 1253 of 2019 3
the Corporate Debtor, we direct the Corporate Debtor to pay rest of
Rs.2,57,190/- within 3 weeks.
7. In the result, the application under Section 9 of the 'I&B Code' filed by 'Mr.
Anand Prakash' is dismissed. The Adjudicating Authority will close the
proceedings. The 'Corporate Debtor' is released from all the rigours of law and
is allowed to function independently from immediate effect. The 'Interim
Resolution Professional' will hand over the assets and records to the
'Promoter'/Directors immediately.
The appeal is allowed with aforesaid observations and directions. No
costs.
[Justice S.J. Mukhopadhaya] Chairperson
[ Justice Bansi Lal Bhat ] Member (Judicial)
/ns/gc/
Company Appeal (AT) (Insolvency) No. 1253 of 2019
This page reproduces a public judgment and a summary of it. It is research material, not legal advice, and it is no substitute for advice from an advocate on your own facts.
Research this judgment with Miss Lucy
Ask what it holds, what has followed it, and what it means for your matter — in plain English, with the citations.
Try Miss Lucy free