TaxTMI 
TaxTMI 
2020 (10) TMI 965
X X X X Extracts X X X X
X X X X Extracts X X X X
....eeking restoration of the Company Petition bearing CP (IB) No.389/MB.II/2019 to file. The application had earlier been disposed of vide this Adjudicating Authority's order dated 29.08.2019 in terms of the settlement arrived at between the parties, after taking the settlement terms on record and making the terms part of the order. Issue for determination 2. The short question that arises for consideration in the present Application is whether the Applicant/Financial Creditor is entitled to seek restoration of the company petition that has already been disposed of, and whether the Adjudicating Authority under the Insolvency and Bankruptcy Code, 2016 ('the Code'), has the power to do so. Terms of settlement arrived at between the parties e....
X X X X Extracts X X X X
X X X X Extracts X X X X
....1,00,00,000/- on or before 31.10.2019; (iii) the remainder of Rs. 2,20,00,000/- in twenty-six monthly instalments commencing from 15.12.2019. (4) Revival of CP (IB) No.389/2019: The parties agree and acknowledge that subject to receipt of the complete and timely payments, the First Party shall withdraw the Company Petition bearing CP (IB) No.389/2019 filed before this Adjudicating Authority against the Second Party. Provided however that the Petition shall stand revived and admitted on the occurrence of events of default, as defined in clause 5.1 and 5.2 of the Deed of Settlement. 4. In the order dated 29.08.2019 passed by the Adjudicating Authority, the Adjudicating Authority had ordered that the underlying company petition can be dispo....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the Hon'ble Supreme Court, in ESS Investments Pvt Ltd v Lokhandwala Infrastructure Pvt Ltd & another, Order dated 31.01.2020 in Civil Appeal No.324/2020 a/w CA No.325/2020, SLP (C) No.222/2020 & SLP (C) No.451/2020 had inter alia ordered as follows: - "6. Since the disputes between the Respondent No.1 and Dalmia Group Holdings has been settled and the order dated 19.09.2019 has been set aside, it will be open to the appellant to proceed against the Respondent No.1 before the NCLT by seeking recall of the order dated 04.09.2018 and revival of its application No.CP(IB) No.4000/MB/2018." 8. Mr Shyam Kapadia submitted that this order virtually recognises the power of the NCLT to recall its own order and revive an application filed under th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sus Finance & Investment Manager LLP, 2017 SCC OnLine NCLAT 406 in which it was held that rule 11 of the NCLT Rules has not been adopted for the purpose of the Code. That order was also upheld by the Hon'ble Supreme Court in appeal. Lokhandwala Kataria Construction Private Limited v Nisus Finance and Investment Managers LLP, Civil Appeal No.9279/2017 decided on 24.07.2017, (2018) 15 SCC 589 : 2017 SCC OnLine SC 1715 This judgment was in a different context seeking withdrawal of a company petition on grounds of settlement arrived at between the parties thereto. 13. Incidentally, the law has also undergone a change since then, permitting withdrawal of applications filed under the Code, in different circumstances. Findings and decision 14. I....