Vishal Gupta vs Aanav Construction Co. & Anr

Vishal Gupta ...Appellant

Versus

M/s Aanav Construction & Anr. ...Respondents

Present

For Appellants: Mr. Ritesh Khare and Mr. Rahul Adlakha, Advocates.

For Respondents: Mr. Amarjit Singh Bedi with Mr. Varun Chandiok, Advocates for Tata Fin. Ltd.

Mr. Rishi Singh, Advocate with Mr. Pawan Kr., IRP.

Mr. Saurabh Kalia, Ms. Saloni Purohit and Mr. Rajiv Malik and Mr. Mohi Gupta, Advocates for Intervener Applicant. Mr. Akash Gupta, Advocate.

ORDER

23.01.2020 'M/s Aanav Construction Co'. moved an application under

Section 9 of the Insolvency and Bankruptcy Code, 2016 (for short the 'I&B

Code'), pursuant to which the Adjudicating Authority (National Company

Law Tribunal), New Delhi Bench by impugned order dated 20th September,

2019 initiated 'Corporate Insolvency Resolution Process' against 'Shri Balaji

Infradevelopers Private Limited'.

2. On 1st October, 2019, when the matter was taken up, learned Counsel

for the Appellant submitted that except 'Contract Agreement' with regard to

Company Appeal (AT) (Insolvency) No. 1016 of 2019 Page 1 of 5 the performance, no document was enclosed in 'Form 5' by the 'Operational

Creditor' to suggest that there is a 'debt' payable, neither any bill nor any

Invoice was raised. However, from the record we find that the 'Corporate

Debtor' has issued 'Work Order' and 'Work Completion Certificate' and

parties were allowed to settle the matter in view of the fact that 'Committee

of Creditors' was not constituted.

3. An application under Rule 11 of the NCLAT Rules, 2016 is filed by the

Appellant, enclosing copies of certain settlement and acknowledgement. One

of the record suggests that the Settlement Agreement has been reached on

13th January, 2020 with M/s Tata Motors Finance Limited (Formerly known

as Sheba Properties Limited). Another Settlement Agreement reached on

13th January, 2020 with M/s Akashganga Infraventures India Limited

(Formerly known as RV Akash Ganga Infrastructure Limited). Third

Settlement Agreement dated 11th January, 2020 brought on record to

suggest that settlement has been reached with Mr. Sourabh Aggarwal,

Proprietor of M/s S S Enterprises. Fourth Settlement Agreement is dated

11th January, 2020 brought on record to suggest that settlement is made

with M/s Sumit Consultant & Contractor.

4. The Appellant has also enclosed four acknowledgements signed by

Mr. Hemant, Sr. Executive - Accountants; Mr. Praveen Kumar, General

Manager - Civil; Mr. Rahul Jha, Head - Accounts and Taxation; and

Mr. Muzaffer Hussain Ghazali, Executive Director - HR & Admin, who had

also filed claims. Thereby, eight Agreement of Settlement or

acknowledgement of payments have been enclosed by the Appellant.

Company Appeal (AT) (Insolvency) No. 1016 of 2019 Page 2 of 5

5. Learned Counsel for the Appellant produced an email dated

22nd January, 2020 of GS Steels to suggest that the amount due to him has

already been paid and appropriated by them. Another email dated

16th January, 2020, shows that SREI Equipment Finance Ltd. has arrived at

settlement in view of order of this Appellate Tribunal dated

2nd January, 2020.

6. A Settlement Agreement dated 18th January, 2020 has been produced

to suggest that M/s Translite Scaffolding Limited has reached 'Terms of

Settlement' with one of the Directors of the 'Corporate Debtor'. So, three

more documents relating to settlement has been placed before us.

7. Mr. Amarjit Singh Bedi, learned Counsel appearing on behalf of Tata

Motors Finance Ltd. accepts that the settlement has been reached with the

Promoters. Mr. Saurabh Kalia, learned Counsel appearing on behalf of

Akashganga Infraventures India also submits that settlement has already

been reached and amount has been paid.

8. Mr. Rishi Singh, learned Counsel appearing on behalf of 'Interim

Resolution Professional' - Mr. Pawan Kumar Goyal informs that total 11

claims of aforesaid persons/ Companies were collated. In regard to those

aforesaid claims, the Appellant has produced the Agreement(s) or

acknowledgement of payment or settlement. He further submits that

'Committee of Creditors' has not been constituted as the Promoters were

allowed to settle with all the Claimants.

9. Learned Counsel for the 'Interim Resolution Professional' informs that

'Interim Resolution Professional' has incurred cost of Rs.1,25,000/-

Company Appeal (AT) (Insolvency) No. 1016 of 2019 Page 3 of 5 approximately towards expenditure and publication etc. and engagement of

Counsel on different dates. This apart, he has also worked for about four

months.

10. In view of the aforesaid submissions, we assess the total fee payable to

the 'Interim Resolution Professional' at Rs.2,00,000/-, which he is entitled to

receive in addition to Rs.1,25,000/- already incurred towards cost, i.e., total

Rs.3,25,000/-. The 'Operational Creditor', who initiated the proceedings has

already paid a sum of Rs.1,00,000/- to the 'Interim Resolution Professional',

which will be adjusted against his fee. The rest of the amount of

Rs.2,25,000/- is payable, which the Appellant agrees to pay. The learned

Counsel for the Appellant submits that he has come with a cheque of

Rs.1,00,000/- and the rest amount, if allowed, will be paid within fifteen

days.

11. In view of the aforesaid facts that the Promoters have settled the claim

of all the 11 Claimants and the 'Committee of Creditors' has not been

constituted, we in exercise of powers conferred by Rule 11 of the NCLAT

Rules, 2016 set-aside the impugned order dated 20th September, 2019 and

dispose of the application under Section 9 of the I&B code preferred by

M/s Aanav Construction Co. as withdrawn. Shri Balaji Infradevelopers

Private Limited ('Corporate Debtor') is released from the rigour of 'Corporate

Insolvency Resolution Process'. The 'Interim Resolution Professional' will

handover all the premises, assets and records of the 'Corporate Debtor' to

the Promoters. The Appellant is directed to pay the rest of the amount of

Rs.1,25,000/- in favour of the 'Interim Resolution Professional' within 15

Company Appeal (AT) (Insolvency) No. 1016 of 2019 Page 4 of 5 days. We have noticed that cheque of Rs.1,00,000/- has already been

handed over to the IRP today.

12 The Appellant is directed to comply with the 'Terms and Conditions' as

reached with the parties pursuant to settlement. If amount is not paid, it

will be open to the parties to move before this Appellate Tribunal for revival

of the 'Corporate Insolvency Resolution Process'/ initiation of contempt

proceedings.

13. The Appeal is allowed with the aforesaid observations and directions.

No costs. Let copy of the emails and the Settlement Agreements as produced

in Appellate Tribunal today, be kept on record.

[Justice S. J. Mukhopadhaya] Chairperson

[Shreesha Merla] Member (Technical)

Ash/GC

Company Appeal (AT) (Insolvency) No. 1016 of 2019 Page 5 of 5