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2024 SCC OnLine NCLT 1917
†
In the National Company Law Tribunal
(BEFORE BIDISHA BANERJEE, MEMBER (JUDICIAL) AND D. ARVIND, MEMBER
(TECHNICAL))
Archangles Distributors Private Limited …
Applicant/Operational Creditor;
Versus
Ideal Financing Corporation Limited …
Respondent/Corporate Debtor.
‡
RST. A (IBC)/16(KB)2023 In CP(IB)/598(KB)2019
Decided on April 3, 2024
Advocates who appeared in this case :
For Registrar of Companies, West Bengal:
1) Mr. Patita Paban Bishwal, Adv. For the Applicant in Rst.A(IBC)/16
(KB)2023
2) Ms. Suranjana Chatterjee, Adv.
1) Mr. Shaunak Mitra, Adv. For the Respondent in Rst.A(IBC)/16(KB)
2023
2) Mr. Saubhik Chowdhury, Adv.
3) Mr. Tirthankar Das, Adv.
The Order of the Court was delivered by
BIDISHA BANERJEE, MEMBER (JUDICIAL):— Court congregated in a
hybrid mode.
2. Learned Counsel for both the parties were heard at length.
3.1 During pendency of CP(IB)/598(KB)2019 the
Applicant/Financial Creditor entered into a settlement agreement with
Corporate Debtor on 7th June, 2022 whereby and whereunder the
Corporate Debtor agreed to pay an amount of Rs. 2,31,60,579/-
(Rupees Two Crore Thirty-One Lakh Sixty Thousand Five Hundred
Seventy Nine only) to the Applicant by 27 (twenty seven) installments.
3.2 It was also agreed between the parties as per the aforesaid
agreement that in default of the performance of the agreed terms of
settlement by the Corporate Debtor, the applicant will be free to apply
to the National Company Law Tribunal, Kolkata Bench, Kolkata to
restore the Company Petition being CP(IB)/598(KB)2019 and/or
instigate any further legal action as per the laws of the land, over and
above the steps in regard to the default.
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3.3 The Applicant, accordingly, at the time of hearing on 8th June,
2022 informed the Bench that a settlement has been arrived at
between the Applicant and Corporate Debtor and upon specific
submission by both the Applicant and Corporate Debtor, this Tribunal
was pleased to dispose of the proceedings by recording the settlement.
3.4 Since the Corporate Debtor has failed to pay the 6 (Six)
installments which were due on 10th April, 2023, 20th May, 2023, 10th
th th th
June, 2023, 30 June, 2023, 20 July, 2023 and 10 August, 2023,
the Advocate on behalf of the Applicant sent a legal notice dated 19th
August, 2023 to the Corporate Debtor, demanding Rs. 2,11,60,579/-
th
plus interest due from 10 April, 2023.
3.5 Upon failure of the Corporate Debtor to make payments as
demanded, the Applicant intends to revive the instant Company
Petition, being CP(IB)/598(KB)2019 as against the Corporate Debtor
and restore it to its original number and file to pursue the proceedings
against the Corporate Debtor filed under section 7 of the Insolvency
and Bankruptcy Code, 2016 read with Rule 4 of the Insolvency and
Bankruptcy (Application to Adjudicating Authority) Rules, 2016.
3.6 Hence, this Application has been preferred to seek the following
reliefs:—
a) Company Petition Number being CP(IB)/598(KB)2019 be
revived and restored to its original file and number against the
Corporate Debtor in view of the settlement having been failed;
b) Adjudicate and dispose of the pending CP(IB)/598(KB)2019
against the Corporate Debtor;
c) Such other order or orders be passed and/or direction or directions
be given as this Hon'ble Tribunal may deem fit and proper.
4. Per Contra:
The Corporate Debtor has resisted the claim having stated as
under:—
(i) No liberty was granted by this Hon'ble Tribunal to the
Financial Creditor to seek restoration while disposing the
said application
That Hon'ble NCLAT in SRLK Enterprises LLP v. Jalan Transolutions
(India) Limited [Company Appeal (AT) Ins. No. 294 of 2021] has
held that “a financial creditor can seek restoration if the application
has been withdrawn by bringing the settlement on record AND
“liberty is taken” to restore the proceedings in case of default”. In
the present case, although the settlement has been brought on
record, however no liberty has been taken by the Financial Creditor
from this Hon'ble Tribunal to seek restoration”.
(ii) MERE EXISTENCE OF CLAUSE FOR LIBERTY TO APPLY FOR
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RESTORATION UPON DEFAULT WILL NOT SUFFICE: The Hon'ble
NCLAT in Permali Wallace Pvt. Ltd. v. Narbada Forest Industries
Pvt. Ltd. [Company Appeal (AT) Ins. No. 36 of 2023 @
paras 3 to 5] has held that even in a case where there existed
a clause providing liberty to the operational creditor to apply
for revival of IBC proceedings, the Adjudicating Authority did
not commit any error in rejecting revival since no liberty was
granted while passing the order permitting withdrawal. Further,
it was held that IBC is not a recovery mechanism and since the
application was not filed for resolution or insolvency of the
corporate debtor, therefore the order under appeal was not
erroneous.
(iii) The Financial Creditor is not at all concerned with the
resolution or insolvency of the Corporate Debtor and is solely
interested to recover its purported debt from the Corporate
Debtor which is not permissible under IBC.
The Corporate Debtor thus prays that this Tribunal may be
pleased to dismiss the present application with costs.
5. We have considered the rival contentions.
6. In as much as no liberty was sought for on 08.06.2022 and the
CP(IB)/598(KB)2019 was dismissed as withdrawn without liberty to
get it revived, in our considered opinion, the prayer for restoration of
CP(IB)/598(KB)2019 is not maintainable and hence not
entertainable.
The CP(IB)/598(KB)2019 was dismissed as withdrawn recording
settlement between the parties. No liberty was granted by this Tribunal
to revive the CP(IB)/598(KB)2019 in case the Corporate Debtor fails to
acknowledge the terms of settlement or fails to pay in terms of the
settlement.
6. Hence the claim of the Applicant fails and therefore, the RST.A
(IBC)/16(KB)2023 is dismissed and is accordingly disposed of.
7. The Registry is directed to send e-mail copies of the order
forthwith to all the parties and their Ld. Counsel for information.
8. Certified copy of this order may be issued, if applied for, upon
compliance of all requisite formalities.
———
†
Kolkata Bench
‡
Section 7 of the Insolvency and Bankruptcy Code, 2016 read with Rule 4 of the Insolvency
and Bankruptcy (Application to Adjudicating Authority) Rules, 2016;
Section 60(5) of the Insolvency and Bankruptcy Code, 2016;
The Insolvency and Bankruptcy Code, 2016;
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