Yogesh Bosmiya & Ors vs India Asses Growth Fund Through Essel ...
- CitationCompany Appeal (AT) (Insolvency) No. 78 of 2019
Ratio decidendi
The rule this decision rests on
The Tribunal's reasoning rests on two points. First, where the Adjudicating Authority has found a debt and a default and the application under Section 7 of the Insolvency and Bankruptcy Code, 2016 is complete, the Authority is entitled to admit the application; the financial creditor's claim is established on those two matters. Second, a corporate debtor's assertion that it is solvent, that funds are lying in an escrow account, or that it wishes to settle the claim is not a ground on which an order of admission under Section 7 may be set aside on appeal. Such matters do not displace the admission, though the order does not prevent the corporate debtor or its shareholders from pursuing a settlement with creditors under Section 12A.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
Yogesh Bosmiya & Ors. ...Appellants
Vs.
India Asses Growth Fund Through Essel Finance Advisors & Managers LLP & Anr. ...Respondents
Present: For Appellants: - Mr. Harihar Bhaye, Advocate.
For Respondents: - Mr. Gaurav Varma, Mr. Kaustubh Prakash, Advocates for R-1 & 2.
ORDER
25.01.2019─ This appeal has been preferred by Yogesh Bosmiya &
Ors., Shareholders of 'Rashmi Housing Private Limited'- ('Corporate
Debtor') against the order dated 14th December, 2018 passed by the
Adjudicating Authority (National Company Law Tribunal), Mumbai
Bench, Mumbai, whereby and whereunder the application under Section
7 of the Insolvency and Bankruptcy Code, 2016 ("I&B Code" for short)
filed by 'India Asses Growth Fund through Essel Finance Advisors and
Managers LLP & Anr.', has been admitted, order of 'Moratorium' has been
passed and 'Interim Resolution Professional' has been appointed.
2. On hearing learned counsel for the parties, we find that there being
a debt and default and the application being complete, the Adjudicating
Authority admitted the application under Section 7.
Contd/-............
-2-
3. Learned counsel for the Appellant submits that the 'Corporate
Debtor' is a solvent Company and amount is lying in the Escrow Account
and they intend to settle the claim. The 'Corporate Debtor' wanted six
months' time to settle the matter but such time was not granted.
However, such ground cannot be taken into consideration to set aside the
impugned order of admission dated 14th December, 2018.
4. However, we make it clear that this order will not come in the way
of the Appellants or Shareholders of the 'Corporate Debtor' to settle the
claim of the creditors and take advantage of Section 12 A of the 'I&B
Code', to which, no objection raised by the 1st and 2nd Respondents.
5. The appeal stands disposed of with aforesaid observations.
(Justice S.J. Mukhopadhaya) Chairperson
(Justice Bansi Lal Bhat) Member(Judicial) Ar/uk
Company Appeal (AT) (Insolvency) No. 78 of 2019
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