Tanya Bhatnagar vs Mohamed Hesham Amin Basha Mashaal & Anr

Tanya Bhatnagar ...Appellant

Vs.

Mohamed Hesham Amin Basha Mashaa'l & Anr. ...Respondents

Present: For Appellant: - Mr. Deepender Hooda, Ms. Jyoti Hooda and Mr. C.P. Malik, Advocates.

For Respondents: - Mr. Mohinder Singh, RP.

O R D E R

31.07.2019─ This appeal has been preferred by the Director of

'M/s. Global Energy Talent Private Limited' ('Corporate Debtor') against

the order dated 19th December, 2018 passed by the Adjudicating

Authority (National Company Law Tribunal), New Delhi, Bench-III,

whereby application under Section 9 of the Insolvency and Bankruptcy

Code, 2016 ("I&B Code' for short) filed by Mr. Mohamed Hesham

Mohamed Amin Basha Mashaa'l, who claimed to be 'Operational

Creditor' has been admitted.

2. Learned counsel appearing on behalf of the Appellant submitted

that the Respondent- Mr. Mohamed Hesham Mohamed Amin Basha

Mashaa'l had arrangement with one 'Global Energy Talent, Mauritius'

and not with 'M/s. Global Energy Talent Private Limited', an Indian

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Company, but Demand Notice under Section 8(1) was issued to 'M/s.

Global Energy Talent Private Limited'- ('Corporate Debtor').

3. It was brought to our notice that no agreement or arrangement

was made between 'M/s. Global Energy Talent Private Limited' and the

1st Respondent and, therefore, no application under Section 9 of the

'I&B Code' was maintainable.

4. On notice, the 1st Respondent had appeared through their

counsel and on 24th April, 2019, it was informed that the parties were

negotiating the matter and one Mr. Sameer Rastogi, Advocate for

Intervener appeared on behalf of 'M/s. Global Energy Talent, Mauritius'.

5. On 29th July, 2019, when the matter was taken up, Mr. Mohinder

Singh, 'Resolution Professional' appeared and one Mr. Susheel Sharma,

Advocate appeared on behalf of one of the Creditors. However, no

appearance was given on behalf of 1st Respondent- Mr. Mohamed

Hesham Mohamed Amin Basha Mashaa'l, nor the counsel for 'M/s.

Global Energy Talent, Mauritius' appeared. It was informed that the

parties have settled the matter and, therefore, there is no need for

appearance on their behalf.

6. Mr. Mohinder Singh, the 'Resolution Professional' submitted that

he has worked for about five months and incurred cost total of which

comes to roughly Rs. 6 lakhs.

Company Appeal (AT) (Insolvency) No. 149 of 2019 -3-

7. Learned counsel for the Appellant submits that 'M/s. Global

Energy Talent Private Limited' is not liable to pay but in case it is to be

allowed, then the 'Resolution Professional' can withdraw the amount

from the account of 'M/s. Global Energy Talent Private Limited', as he is

the custodian of the said Company, alleged 'Corporate Debtor'.

8. Taking into consideration the fact that 1st Respondent has not

disputed that it had no arrangement or agreement with 'M/s. Global

Energy Talent Private Limited', an Indian entity shown as 'Corporate

Debtor' and had settled the matter with 'M/s. Global Energy Talent,

Mauritius', it appears to us that the application under Section 9 was

filed by 1st Respondent with malicious intention for purpose other than

for the resolution of insolvency, or liquidation of 'M/s. Global Energy

Talent Private Limited', as liable for action under Section 65 of the 'I&B

Code'. This apart, as in absence of any relationship of the 'Operational

Creditor' and the 'Corporate Debtor' between Mr. Mohamed Hesham

Mohamed Amin Basha Mashaa'l and 'M/s. Global Energy Talent Private

Limited', an Indian entity, we hold that the application under Section 9

was not maintainable.

9. For the reasons aforesaid, we set aside the impugned order dated

19th December, 2018.

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

appointing 'Interim Resolution Professional', declaring moratorium,

Company Appeal (AT) (Insolvency) No. 149 of 2019 -4-

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

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

function independently through its Board of Directors from immediate

effect.

11. Though to ensure that the 'Interim Resolution Professional' does

not suffer, we direct 'M/s. Global Energy Talent Private Limited' to pay a

sum of Rs.6 Lakhs after adjusting the amount of Rs. 2 lakhs as has

been paid by 'M/s. Global Energy Talent, Mauritius' within a period of

three weeks. However, it will be open to 'M/s. Global Energy Talent

Private Limited' to recover the amount from Mr. Mohamed Hesham

Mohamed Amin Basha Mashaa'l. The matter is also remitted to the

Adjudicating Authority to decide whether any order is required to be

passed against Mr. Mohamed Hesham Mohamed Amin Basha Mashaa'l

under Section 65 of the 'I&B Code' on the ground that the application

was filed by him fraudulently with malicious intention for purpose other

than for the resolution of insolvency, or liquidation. Before deciding

Company Appeal (AT) (Insolvency) No. 149 of 2019 -5-

such issue, the Adjudicating Authority will have to give notice to Mr.

Mohamed Hesham Mohamed Amin Basha Mashaa'l and after hearing

pass any order under Section 65.

12. This order will not come in the way of other creditors who may

move before appropriate forum for appropriate relief. 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. 149 of 2019