Vikas Goel vs Ashika Credit Capital Limited And Anr

Vikas Goel ...Appellant

Versus

Ashika Credit Capital Ltd. & Anr. ...Respondents

Present: For Appellant: Mr. Mohit Chaudhary, Mr. Kunal Sachdeva and Mr. Prakhar Mithal, Advocates. For Respondents: Mr. Deepak Vohra, Advocate for R-1. Ms. Tanisha Kaushal, Advocate for R-2. Ms. Pooja Mahajan, Mr. Savar Mahajan, Ms. Shreya Mahalwar and Ms. Vinita Sashidharan, Advocates for R-3.

ORDER

20.02.2023: Heard learned counsel for the Appellant - Suspended

Director of the Corporate Debtor, learned counsel for the Financial Creditor as

well as learned counsel for the Interim Resolution Professional (IRP).

2. In this Appeal two orders are under challenge. First order dated

11.01.2023 passed by the Adjudicating Authority (National Company Law

Tribunal), New Delhi Bench, Court-II by which order Section 7 application filed

by the Financial Creditor (Respondent No.1 herein) has been admitted. The

second order is dated 03.02.2023 on which date the Adjudicating Authority

permitted to withdraw the application filed by the Financial Creditor for

withdrawal of the proceedings and the application was dismissed as

withdrawn.

Cont'd.../ -2-

3. The brief facts of the case are that the Section 7 application was filed by

the Financial Creditor claiming an amount of Rs.2,48,82,875/-. The case of

the Corporate Debtor is that after admission order was passed, they and the

Financial Creditor have settled the matter on 02.02.2023, and no dues

certificate was issued by the Financial Creditor on 02.02.2023, and on the

same date application was filed by the Financial Creditor for withdrawal of

proceedings under Section 7, which came before the Adjudicating Authority

on 03.02.2023, on which date the Adjudicating Authority permitted

withdrawal of the application and permitted filing of application through IRP.

On 03.02.2023, IRP was approached by an email at 05:44 pm with detailed

letter. However, the IRP had some confusion regarding finalisation of

settlement with the Financial Creditor, hence, CoC was constituted at 08:00

PM on the same day.

4. The submission of learned counsel for the Appellant is that settlement

amount has already been paid on 02.02.2023 by Bank Drafts which amount

has already been received by the Financial Creditor.

5. Learned counsel for the Financial Creditor submits that the parties

having settled they do not want to proceed with the Section 7 proceeding.

6. Learned counsel for the IRP submits that parties having settled, the IRP

has no objection in closing the matter provided his fee and expenses are paid.

It is submitted that Rs.2 Lakhs has already been paid to the IRP as per order

dated 11.01.2023. Appellant undertakes to make payment of reasonable

Company Appeal (AT) (Insolvency) No. 165 & 166 of 2023 -3-

expenses which has been incurred by the IRP. We notice that in the present

case an application to withdraw Section 7 application was filed on 02.03.2023

i.e. before the constitution of CoC, and the Adjudicating Authority could have

exercised its inherent jurisdiction to permit withdrawal.

7. We direct that the IRP shall communicate the expenses to the Appellant

within three days who shall make the payment within two weeks thereafter.

8. In view of the aforesaid, the impugned order dated 11.01.2023 is set

aside and Corporate Debtor is kept out of the rigour of the CIRP.

9. Learned counsel for the Appellant submits that a joint application has

been filed before the Adjudicating Authority, which application shall be

withdrawn and the Adjudicating Authority be communicated of this order

within three days from today.

[Justice Ashok Bhushan] Chairperson

[Barun Mitra] Member (Technical) Archana/nn

Company Appeal (AT) (Insolvency) No. 165 & 166 of 2023