Vivek Goel vs M/S Pooja Finelease Ltd & Anr

Viveck Goel ...Appellant

Versus

Pooja Finlease Ltd. & Anr. ...Respondents

Present: For Appellant: Mr. M.P. Sahay, Ms. Awanitika, Mr. Sachin Kharb and Mr. Tushar Sharma, Advocates.

For Respondents: Ms. Shivangi Ghosh and Mr. Rajendra Beniwal, Advocates for Akasa Finance Ltd. (Applicants in I.A. No.2316 of 2023).

JUDGMENT

ASHOK BHUSHAN, J.

This Application has been filed by the Respondent to the Appeal,

Akasa Finance Ltd. (Formerly Known as Pooja Finlease Ltd.) praying for

recall of order dated 11.02.2022 passed in Company Appeal (AT) (Ins.)

No.152 of 2020 by which Corporate Insolvency Resolution Process of the

Corporate Debtor was set aside. The application has been opposed by the

Appellant who has also filed a reply to the application. Brief facts necessary

to be noticed for deciding this application are:-

Cont'd.../ -2-

(i) An application was filed by the Financial Creditor against the

Corporate Debtor - M/s Auto Needs (India) Pvt. Ltd. under section

7 claiming total financial debt of Rs.66,76,565/-, which

application was admitted by the Adjudicating Authority vide

order dated 20.12.2019.

(ii) Challenging the order dated 20.12.2019, Company Appeal (AT)

(Ins.) No.152 of 2020 (present appeal), has been filed by Viveck

Goel, the Suspended Director of the Corporate Debtor.

(iii) When the Appeal was taken on 30.01.2020, learned counsel for

the Appellant stated that the Financial Creditor has already filed

an application before the Adjudicating Authority for withdrawal

of the Section 7 Application.

(iv) Subsequently, on 11.02.2020, the order dated 05.02.2020

passed by the Adjudicating Authority permitting withdrawal of

Section 7 application was brought into notice of the Court. On

11.02.2020, this Court noticing the order of the Adjudicating

Authority dated 05.02.2020 that Section7 application has been

dismissed as withdrawn has set aside the order dated 20.12.2019

and released the Corporate Debtor from rigours of CIRP. Order

dated 11.02.2020 passed by this Tribunal is as follows:

"ORDER 11.02.2020 Heard Advocate - Shri M.P. Sahay for the Appellant-Corporate Debtor. Heard Advocate

I.A. No. 2316 of 2023 in Company Appeal (AT) (Insolvency) No.152 of 2020 -3-

Shri Rajendra Beniwal for Respondent No.1- Financial Creditor. The Advocate for Interim Resolution Professional was present on last date but is not present today. Counsel for Appellant submits at Bar true copy of Order passed by the Adjudicating Authority (National Company Law Tribunal, New Delhi Court-VI) on 5th February, 2020 in IB-2340/ND/2019 which reads as under:-

"ORDER

Heard the submissions made by the counsel for the financial-creditor. Counsel for the corporate- debtor is present. Authorized Representative is also present and submitted that they have received 12 cheques towards full and final settlement of their claim. The application filed under Rule 11 of NCLT rules, 2016 is taken on record and the application is allowed as a consequence the petition filed under Section 7 stands dismissed as withdrawn, in exercise of powers conferred under Rule 11 of the NCLT Rules, 2016."

The True copy is marked 'X' for identification.

2. Counsel for Appellant states that in view of the Order passed by the Adjudicating Authority dismissing the Application under Section 7 as withdrawn, he may be permitted to withdraw this Appeal. The learned Counsel for Respondent agrees that such Order has been passed by the Adjudicating Authority and concedes that the Impugned Order may be set aside.

3. Considering Order passed by the Adjudicating Authority on 5th February, 2020, the Impugned Order is set aside.

I.A. No. 2316 of 2023 in Company Appeal (AT) (Insolvency) No.152 of 2020 -4-

4. The IRP/RP will submit particulars regarding CIRP costs and fees to the Adjudicating Authority and the Adjudicating Authority will consider the same and direct the Corporate Debtor to pay the same in time to be specified. The IRP (Interim Resolution Professional) will hand over the assets and records of the Corporate Debtor to the Board of Directors of the Corporate Debtor. The Corporate Debtor is released from all the rigours of the Corporate Insolvency Resolution Process and is allowed to function independently through Board of Directors.

5. If the cheques issued are dishonoured or CIRP costs, or fees of IRP/RP are not paid, parties are at liberty to move this Tribunal to recall present Order.

The Appeal is disposed of accordingly."

(v) I.A. No.2316 of 2023 has been field by the Financial Creditor

relying on the liberty granted that if the cheques issued are

dishonoured or CIRP costs, or fees of IRP/RP are not paid, parties

are at liberty to mover this Tribunal to recall the order. The case

of the Applicant is that the Corporate Debtor has tendered 12

post-dated cheques starting from 05.03.2020. It is stated in the

application that not a single cheque out of 12 cheques was

honoured, which statement has been made in Para 6 of the

application.

(vi) Applicant in the application has also referred to I.A. No. 1124 of

2021 which was filed by the Applicant - Financial Creditor before

I.A. No. 2316 of 2023 in Company Appeal (AT) (Insolvency) No.152 of 2020 -5-

the Adjudicating Authority for revival of the Section 7 application

which application was initially dismissed by the Adjudicating

Authority on 10.11.2021 against which Company Appeal (AT)

(Ins.) No.103 of 2022 was filed by the Financial Creditor. This

Appellate Tribunal vide order dated 18.07.2022 has allowed the

Appeal and set aside the order dated 10.11.2022 and revived

Section 7 application filed by the Financial Creditor.

(vii) In the reply filed by the Appellant to the I.A. No.2316 of 2023, the

Appellant has stated that against the order passed by this

Tribunal on 18.07.2022, the Corporate Debtor has filed an appeal

being "Civil Appeal No.5896 of 2022, Auto Needs (India) Pvt. Ltd.

& Anr. Vs. Akasa Finance Ltd. (Formerly known as Pooja

Finelease Ltd.)", in which the Hon'ble Supreme Court has issued

notice on 23.09.2022. Learned counsel for the Applicant has

brought on record the order of the Hon'ble Supreme Court dated

28.11.2023 by which Civil Appeal No.5896 of 2022 filed by the

Corporate Debtor has been dismissed.

(viii) As noted above, this application I.A. No.2316 of 2023 has been

filed on the strength of liberty granted by this Tribunal by order

dated 11.02.2020. Applicant's specific averment in the

application is that 12 post-dated cheques given by the Corporate

Debtor has been dishonoured.

I.A. No. 2316 of 2023 in Company Appeal (AT) (Insolvency) No.152 of 2020 -6-

(ix) The Appellant has filed a reply to the I.A. No.2316 of 2023 dated

06.09.2023. In the reply affidavit filed by the Appellant there is

no denial to the statement made in the application that 12

cheques given by the Corporate Debtor has not been

dishonoured. The Appellant, however, in the reply has stated

about appeal filed before the Hon'ble Supreme Court being Civil

Appeal No.5896 of 2022 and has opposed the application.

2. We have heard learned counsel for the Applicant as well as learned

counsel appearing for the Respondent to the Application (Appellant herein).

3. After having heard learned counsel for the parties we are satisfied

that the Financial Creditor is entitle to revive the Company Appeal (AT)

(Ins.) No.152 of 2020 in view of the liberty granted by this Tribunal itself in

its order dated 11.02.2020. The cheques given by the Corporate Debtor

having been dishonoured, Appeal deserve to be revived. We, however,

notice that the Appellant has been opposing the Application on untenable

grounds and his only intent is to delay the proceedings. The sequence of

the events indicate that the Corporate Debtor did not honour the settlement

on basis of which Section 7 application was closed by the Adjudicating

Authority by order dated 05.10.2020 and thereafter on one or other pretext

has been delaying the proceedings.

4. In view of the foregoing discussion, we allow I.A. No.2316 of 2023,

recall order dated 11.02.2020 passed by this Tribunal in the present

appeal. The Company Appeal (AT) (Ins.) No.152 of 2020 is revived. We

I.A. No. 2316 of 2023 in Company Appeal (AT) (Insolvency) No.152 of 2020 -7-

make it clear that there is no interim order in this appeal in favour of the

Appellant. We allow this Application with cost of Rs.1 Lakh (Rupees One

Lakh Only) to be paid by the Appellant to the Financial Creditor within a

period of two weeks from today. I.A. No. 2316 of 2023 is allowed

accordingly. List the Appeal on 03.04.2024 for admission.

[Justice Ashok Bhushan] Chairperson

[Barun Mitra] Member (Technical)

[Arun Baroka] Member (Technical)

NEW DELHI

1st March, 2024

Archana

I.A. No. 2316 of 2023 in Company Appeal (AT) (Insolvency) No.152 of 2020