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TMI Blog2021 (7) TMI 947X X X X Extracts X X X X X X X X Extracts X X X X ..... mpugned Order dated 29th August, 2019 passed by the Adjudicating Authority (National Company Law Tribunal, Mumbai Bench) in CP(IB) - 3249/I&BP/MB/2018 whereby the Application under Section 9 filed by Respondent No. 1-Operational Creditor was admitted. The Original Petitioner is Siddhi Vinayak Logistics Limited - Respondent No. 1 who filed the Application through Liquidator as Respondent No. 1 itself was undergoing CIRP (now it is in Liquidation). 3. This Application has been filed by the Appellant under Rule 11 of NCLAT Rules, 2016. It is stated that the Appellant and the Corporate Debtor have settled the dispute. In this matter when Appeal was filed Publication itself was stayed vide Orders dated 13th September, 2019 read with 20th September, 2019. The Learned Sr. Counsel for the Appellant refers to the Settlement Agreement entered into between the Appellant on behalf of the Corporate Debtor - Arkay Logistics Ltd. and the Respondent NO. 1- Original Petitioner - Siddhi Vinayak Logistics Ltd. copy of which has been filed with the Application at Annexure C. The contents of which read as under: "SETTLEMENT AGREEMENT Settlement Agreement between Edwell Infrastructure Hazira Limite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /s Arkay Logistics Limited, which is currently undergoing CIRP. AND WHEREAS Edwell Infrastructure Hazira Limited, First Party, being the shareholder of M/s Arkay Logistics Limited and being Aggrieved by the order of admission, had challenged the order of initiation of CIRP against M/s Arkay Logistics Limited by filing Company Appeal No. 951 of 2019 before the Hon`ble NCLAT, which issued notice and interim order on the appeal of the First Party herein on 13.09.2019 and directed that the Resolution Professional not to issue any advertisements inviting claims from creditors. AND WHEREAS the First Party made its first proposal of settlement vide letter dated 15.01.2020, and later on upward revised the offers on 01.09.2020 and 23.10.2020. AND WHEREAS the Second Party gave counter offer vide letter dt. 12.07.2021 to First Party towards the full and final satisfaction of dues of M/s. Arkay Logistics Limited for resolving matter expeditiously. AND IN CONSIDERATION OF THESE PRESENTS, THIS AGREEMENT WITNESSETH AS UNDER: That both First Party and Second Party have mutually agreed and arrived at an amicable settlement of the subject matter of Section- 9 petition under IBC which was f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter the settlement. 7. That both the Parties have mutually agreed to make a joint statement/affidavit in Company Appeal No. 951 of 2019 pending before Hon'ble National Company Law Appellate Tribunal, New Delhi ("Hon'ble NCLAT") on or before 22nd July 2021, immediately pursuant to the execution of this Agreement and further both the Parties mutually agree to cause the Hon`ble NCLAT appeal to be disposed-off in terms of this Agreement and also disposal and also cause the withdrawal of Section 9 petition under IBC, pending at Hon`ble NCLT, Mumbai. 8. That it is agreed between the Parties that the First Party shall bear the CIRP cost and fee of the IRP ('Interim Resolution Professional') of the M/s Arkay Logistics Limited. 9. This Agreement confirms that the cases filed by Second Party under IBC/ Civil law/ Criminal Law or any other law enforce as on date pending against the First Party and / or the Corporate Debtor shall be withdrawn and the Second Party shall ensure that no further legal proceedings would be pursued by the Second Party against M/s Arkay Logistics Limited include its legal heirs, successors, executors, administrators, directors, promoters, assigns and legal rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith full force and effect. 14. The Parties mutually agree and confirm that this Agreement shall be signed on each page by the Parties and shall be executed in two (2) counterparts, each of which shall be retained by the First Party and the Second Party respectively. Each counterpart of this Agreement shall be deemed to be an original and all of which together shall constitute one and the same instrument. 15. In the event of any dispute or difference arising between the Parties in relation to this Agreement, the same shall be referred to arbitration before a sole arbitrator appointed by the Parties by mutual consent in accordance with the provisions of the Indian Arbitration & Conciliation Act, 1996. The seat of arbitration shall be Mumbai and the language for the proceedings shall be English. The Courts at Mumbai shall have exclusive jurisdiction to try and entertain any dispute arising out of or in connection to this Agreement. 16. The validity, performance, construction and effect of this Agreement shall be governed by the laws of the India. IN WITNESS WHEREOF, the parties here unto have set their hands on this 19th day of July, 2021 at Mumbai. FIRST PARTY For Edwell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t as referred above it is inappropriate for the learned counsel for the Original Petitioner - Operational Creditor to now turn around and create doubts with regard to the amounts paid to the Resolution Professional. The Learned Counsel for the Original Petitioner is submitting that the Application was filed in capacity of Liquidator and as it is Liquidator it is answerable to stakeholders. According to us, when willful execution of the settlement agreement dated 19th July, 2021 is not questioned and the documents itself show that the Appellant would be making necessary payments of the CIRP Costs and the Fees of Resolution Professional, the Original Applicant who is not making the payment can not now be seen as turning around to question the quantum of the CIRP expenses and Fees. 7. Considering the submissions made and the contents of Annexure D we do not accept the submissions that the Learned Counsel for the Original Applicant is making out a case to look into the question of sufficiency or otherwise of the CIRP Costs and the Fees. 8. For the above reasons, we dispose the Appeal as settled. The Impugned Order is quashed and set aside. The Original Application filed before the Ad ..... X X X X Extracts X X X X X X X X Extracts X X X X
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