Vinay Tambi, Partner vs Khandelwal Buildcon Pvt. Ltd. & Anr

Vinay Tambi, Partner M/s Taruchaya Colonizers LLP ...Appellant

Vs

Khandelwal Buildcon Pvt. Ltd. & Anr. ...Respondents

Present: For Appellant: Mr. Rajshekhar Rao, Ms. Ankita Chaudhry and Mr. Raghav Kacher, Advocates. For Respondents: Mr. Prakul Khurana and Mr. Ankit Sareen, Advocates for R-1. Mr. Prashant Agrawal, IRP.

ORDER

06.12.2019: 'Khandelwal Buildcon Pvt. Ltd.' (Financial Creditor) moved

application under Section 7 of the Insolvency and Bankruptcy Code, 2016

(hereinafter referred to as 'I&B Code'), pursuant to which Corporate Insolvency

Resolution Process initiated against 'Taruchaya Colonizers LLP' (Corporate

Debtor) by impugned order dated 1st October, 2019 passed by the Adjudicating

Authority (National Company Law Tribunal), Jaipur Bench (Rajasthan).

2. When the matter was taken up on 14th November, 2019, learned counsel

for the Appellant stated that the Appellant is ready to pay principal amount of

Rs.2,25,00,000/- as shown in Part IV of Form-1, which is the 'defaulted

amount' shown. Mr. Sanjay Jhawar, learned counsel appeared on behalf of the

Respondent - 'Khandelwal Buildcon Pvt. Ltd.' (Financial Creditor) submitted -2-

that the said Respondent may accept the offer provided the Appellant

withdraws the 'FIR' filed against the Financial Creditor, its Director, other

family members and Interim Resolution Professional. Learned counsel

appearing on behalf of the Appellant agreed on behalf of the Appellant to

withdraw such FIR lodged against 'Khandelwal Buildcon Pvt. Ltd.', its

Directors, other family members and the Interim Resolution Professional. It

was also informed that the Committee of Creditors has not been constituted.

3. An affidavit has been filed by the Appellant stating that the Appellant has

agreed to withdraw the FIR lodged against 'Khandelwal Buildcon Pvt. Ltd.', its

Directors, family members and Mr. Prashant Agrawal, Interim Resolution

Professional. Another affidavit has been filed on behalf of the Respondent -

'Khandelwal Buildcon Pvt. Ltd.'. It is informed that the Respondent has agreed

to settle the matter for Rs.2,25,00,000/- subject to withdrawal of the FIR No.

0586/2019 registered at PS Bhankrota, Jaipur lodged by the Appellant against

'Khandelwal Buildcon Pvt. Ltd.', its Directors, family members and Mr.

Prashant Agrawal, Interim Resolution Professional. It is also stated that the

Appellant should pay fee and cost of the Interim Resolution Professional. The

Interim Resolution Professional has been provided an advance amount of Rs.2

Lakhs by 'Khandelwal Buildcon Pvt. Ltd.' (Financial Creditor), which he should

return.

Company Appeal (AT) (Insolvency) No. 1036 of 2019 -3-

4. Mr. Prashant Agrawal, Interim Resolution Professional while accepted

that the Committee of Creditors has not been constituted, agreed to return a

sum of Rs.2 Lakhs to 'Khandelwal Buildcon Pvt. Ltd.', if he is paid by the

Appellant a sum of Rs.5,38,471/-, which is the fee and cost incurred by him.

5. Learned counsel appearing on behalf of the Appellant hands over

Demand Draft No. 014588 dated 5th December, 2019 issued by Axis Bank,

Civil Lines, Jaipur (Rajasthan) in the name of 'Khandelwal Buildcon Pvt Ltd' for

Rs.2,25,00,000/- (Rupees Two Crore Twenty Five Lakh Only) to Mr. Prakul

Khurana, learned counsel for the Respondent - 'Khandelwal Buildcon Pvt. Ltd.'

for onward transmission to the said Respondent.

6. Learned counsel for the Appellant also handed over a post-dated cheque

No.160306 dated 20th December, 2019 issued by 'Axis Bank Ltd.', Civil Line,

Jaipur (Rajasthan) in the name of 'Mr. Prashant Agrawal' for Rs.5,38,471/-

(Rupees Five Lakh Thirty Eight Thousand Four Hundred and Seventy One

Only) signed by Mr. Vinay Tambi (Appellant) to Mr. Prashant Agrawal, Interim

Resolution Professional. The Appellant undertakes that the above cheque will

not bounce and can be encashed on or after 20th December, 2019.

Company Appeal (AT) (Insolvency) No. 1036 of 2019 -4-

7. In the circumstance, while we order to keep a copy of aforesaid Demand

Draft and Post-dated Cheque in the record of this appeal, taking into

consideration the fact that the Committee of Creditors had not been

constituted by the time the matter has been settled between the parties,

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

& Anr. Vs. Union of India & Ors.', Writ Petition (Civil) No. 99/2018,

reported in 2019 SCC OnLine SC 73, in exercise of power conferred under

Rule 11 of NCLAT Rules, 2016, we set aside impugned order dated 1st October,

2019 passed by the Adjudicating Authority and allow 'Khandelwal Buildcon

Pvt. Ltd.' (Financial Creditor) to withdraw the application under Section 7 of the

I&B Code. The application under Section 7 stands withdrawn.

8. Mr. Prashant Agrawal, Interim Resolution Professional is directed to

return the sum of Rs.2,00,000/- to the person rom whom he received the

amount on behalf of 'Khandelwal Buildcon Pvt. Ltd.' within 15 days from the

date of encashment of cheque of Rs.5,38,471/-. He is also directed to

handover possession of assets and records of the Corporate Debtor to the

Promoter/ Board of Directors of 'Taruchaya Colonizers LLP' on receipt of the

amount of Rs.5,38,471/- The Appellant or any other person who has lodged

FIR No. 0586/2019, will move appropriate application for withdrawal/

Company Appeal (AT) (Insolvency) No. 1036 of 2019 -5-

quashing of FIR before appropriate Police Station / Court of Law, which may

take into consideration the agreement reached between the parties and pass

appropriate order. The application must be moved within a period of two

weeks. The appeal is allowed with aforesaid observations and directions.

[Justice S. J. Mukhopadhaya] Chairperson

[Justice Bansi Lal Bhat] Member (Judicial)

[Justice Venugopal M.] Member (Judicial)

am/gc

Company Appeal (AT) (Insolvency) No. 1036 of 2019