World Crest Co Op Housing Society Ltd vs Macrotech Developers Ltd

IN THE MATTER OF: World Crest Co-Operative Housing Society ....Appellant Vs.

Macrotech Developers Ltd. ....Respondent

Present: For Appellant: Mr. Abhirup Dasgupta and Ms. Mily Ghoshal, Advocates For Respondent: Mr. Abhijeet Sinha, Sr. Advocate

ORDER

(Hybrid Mode) 3.9.2024 - This Application is moved by the Appellant for restoration of

the captioned Appeal on the ground though the matter was settled on 9.10.2023,

the Appellant herein moved an Interlocutory Application - I.A. No.4630 of 2023

seeking withdrawal of such Appeal. Para - 8 of the application records as under:-

"8. The parties however have now come together to settle the matter and has arrived at a settlement for the entire dues which is agreed to be paid as mentioned below:

a. Rs.3,60,00,000/- (Rupees Three Crores and Sixty Lakhs Only) on filing of this present application seeking withdrawal of the said matter.

b. Balance Rs.3,60,00,000/- (Rupees Three Crores and Sixty Lakhs Only) alongwith interest as agreed hereinabove shall be adjusted from the dues of FCAM payable by the members of the Appellants to the respondents."

2

2. Now since the said settlement was not adhered to by the Respondents

herein, hence this application is moved to revive the appeal.

3. We have heard the learned Counsels.

4. In "Growel Feeds Pvt. Ltd. versus Ashadeep Aquaculture Pvt. Ltd.", this

Tribunal held as follows:-

"3. Subsequent to the said order, it appears that settlement terms were not honoured by the Corporate Debtor. On the breach being committed, an application was filed to revive the CIRP. The Adjudicating Authority has taken the view that there is a fresh cause of auction to take appropriate action against the party concerned which has been observed in Paragraph 9 of the Order. It is further stated that Adjudicating Authority in its order dated 13th September, 2022 in spite of request to grant liberty to revive has negavitated the said request hence the revival cannot be granted.

4. We are of the view that in the facts of the present case, especially when the liberty sought by the memo was not granted by the Adjudicating Authority the course open for the Appellant was to file a fresh application under Section 9 of the Code and the Adjudicating Authority did not commit any error in refusing to revive the earlier Company Petition."

5. Further in "Adhunik Niryat Ispat Ltd. versus Truvolt Engineering

Company Pvt. Ltd.", this Tribunal held:-

"13. On perusal of the aforesaid order it is very much clear that the right for revival of main application was forfeited by the Ld. NCLT. Once with open mind the appellant has agreed on the terms and thereafter he preferred

Restoration Application (AT) No.20 of 2024 in Comp. App. (AT) (Ins) No.862 of 2023 3

to keep his application dismissed, there was no reason to again approach the NCLT for filing an application for restoration. Of course, Ld. NCLT while dismissing the restoration petition had examined the question of threshold, we are of the opinion that those facts are not required to be taken note of at the moment particularly in view of the fact that restoration application has also been dismissed on the ground that no liberty was granted for revival.

14. ...........

15. In view of the facts and circumstances, particularly in the fact that while dismissing the application on the ground of settlement, Ld. NCLT by its implication had restrained the appellant for revival of the application, there is no reason to entertain the present application which has been filed against the impugned order. The Appeal stands dismissed."

6. Further in "SRLK Enterprises LLP versus Jalan Transolutions (India) Ltd.",

this Tribunal held:-

"6. Going through the Impugned Order dated 26th February, 2021 which seeks to recall the Order dated 09th May, 2019 which also we have seen, we find it difficult to take a different view from the Adjudicating Authority. There is difference between withdrawal simplicitor making statement that parties have settled. It is different when bringing the settlement on record, and making it a part of the Order of withdrawal liberty is taken and brought on record to restore the proceedings in case of default. IBC is not a recovery proceeding where because the money or part of it has not come, the party may repeatedly come to the Court. Adjudicating Authority has rightly observed that no liberty to revive was there and so

Restoration Application (AT) No.20 of 2024 in Comp. App. (AT) (Ins) No.862 of 2023 4

declined to interfere. The Appellant would be at liberty to pursue other remedies in law."

7. We have also gone through the Application - I.A. No.4630 of 2023 which

was the source of withdrawal of the appeal. No such liberty for revival was either

sought for or granted. In view of the law cited above, there is no reason as to why

this Appeal be revived. This Application stands dismissed.

8. This Order shall not interfere with the contentions raised on merits by any

of the parties.

9. Ordered accordingly.

[Justice Yogesh Khanna] Member (Judicial)

[Mr. Ajai Das Mehrotra] Member (Technical) rs/md

Restoration Application (AT) No.20 of 2024 in Comp. App. (AT) (Ins) No.862 of 2023