2023 (4) TMI 778

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....ate for R-1. Mr. Saurabh Kalia, Mr. Madhav Goel for Applicant Intervenor Mr. Dhaval Deshpande, Adv. for Intervenor Mr. Anuj Singh, Mr. Gaurav H Sethi, Mr. Anant Bajpai, Advocates for RP/R-2 JUDGMENT ASHOK BHUSHAN, J. This Appeal has been filed by a Suspended Director of the Corporate Debtor, challenging the order dated 11.11.2022 passed by National Company Law Tribunal, Mumbai Bench, Court - II, admitting Section 9 Application filed by the Operational Creditor - Amit Steels. 2. Brief facts of the case necessary to be noted for deciding this Appeal are: (i) Respondent No.1 supplied certain goods to the Corporate Debtor - Truly Creative Developers Pvt. Ltd. . The Operational Creditor gave a Demand Notice dated 09.04.2018 ....

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....tion filed was only for an amount of Rs.11,23,651/-. Learned Counsel for the Appellant submits that there are also several issues pertaining on merits of the order. Submissions need scrutiny. 2. Issue Notice. Mr. Kunal Godhwani, Learned Counsel accepts notice on behalf of Respondent No.1. Let Reply be filed within three days. Rejoinder, if any, may be filed within three days thereof. 3. Learned Counsel for the Appellant submits that the Committee of Creditors has already been constituted. 4. List the Appeal on 22.12.2022. In the meantime, no further steps be taken in pursuance of the impugned order." 4. In the Appeal, reply has been filed by Respondent No.1 - Operational Creditor to which a rejoinder h....

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.... entered into by the parties on 07.12.2021, which was acted upon, there was no occasion to admit the Company Petition and the Operational Creditor did not bring into the notice of the Adjudicating Authority about the settlement, due to which the order was passed on 11.11.2022, admitting Section 9 Application. It is further submitted that after the order dated 11.11.2022, settlement dated 30.11.2022 has been entered between the parties, which was executed on 08.12.2022 in pursuance of which the Appellant has made payment of Rs.8,50,000/- to the Operational Creditor. The Appellant further contended that he is ready to clear all dues of the Operational Creditor. 7. The learned Counsel for the Appellant further submits that Application filed....

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....s. Some of the Intervenors are Unsecured Financial Creditors, who have been given vote sharing in the CoC. The learned Counsel for the Intervenors submitted that the Corporate Debtor has committed serious default in completing the various projects and the CIRP of the Corporate Debtor needs to be completed. The learned Counsel for the RP as well as Intervenors submitted that any settlement with the Operational Creditors can be recognized only when it is approved by the CoC as per Section 12A of the Code read with Regulation 30A of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 (hereinafter referred to as the "CIRP Regulations") by ninety per cent vote share of the CoC, sin....

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....8 and another detailed Notice dated 30th November 2018 was sent by the Operational Creditor demanding repayment of the entire amount due. As no payments were received, the Operational Creditor filed this Petition on 15th March 2019. No replies were filed by the Corporate Debtor to both the Notices and to this Petition." 13. In the Appeal, reliance has been placed on some settlement with Operational Creditor dated 07.12.2022. We find that Operational Creditor proceeded with the Application even after 07.12.2022, which indicates that Operational Creditor was not fully satisfied with the settlement, if any reached. Even according to the Appellant's case, full payment under the said settlement was never made before admission of Section 9 App....