Anuj Tejpal Vs Rakesh Yadav (NCLAT Delhi)
Conclusion: In present facts of the case the Hon’ble NCLAT have held that under Rule 11 of the NCLT Rules, 2016 they have power to grant of withdrawal of cases. It was also observed that prime objective of the Code is not recovery, but revival
Held: The Appellant has preferred the instant Appeal against the Order of Admission of Application under Section 9 of the Insolvency and Bankruptcy Code, 2016, wherein the Adjudicating Authority have passed the order of moratorium and appointment of Interim Resolution Professional (IRP), which have been challenged in this Appeal. The contentions of the Appellant were as under:
- In absence of any Agreement subsisting at the time of filing of the Petition between the Appellant and the second Respondent there is no privity of Contract between the two;
- Learned Adjudicating Authority having observed in the Impugned Order that payments remitted were accepted by the ‘Operational Creditor’ for the relevant period, ignored the factual position that the ‘Corporate Debtor’ and MTH are two separate and distinct legal entities.
- The Learned Adjudicating Authority ought not to have admitted the Petition under Section 9 ignoring the factum that the Application was filed against incorrect legal entity and also the existence of ‘Pre-Existing Dispute’.
The Hon’ble Appellate Tribunal on 08.04.2021 based on the submission of the Learned Counsel that the ‘Operational Creditor’ has wrongly proceeded against the ‘Corporate Debtor’ instead of the sister concern and that the sister concern has already paid all the amounts claimed by the ‘Operational Creditor’ and that the Committee of Creditors has not yet been constituted, issued notice and suspended the Constitution of the Committee of Creditors. The Counsel for the Appellant further submitted that all efforts would be made to settle with the ‘Operational Creditor’ under Section 12-A of the Code.
