Yung Jai Koo vs HR Polycoats Pvt. Ltd. & Anr.

O R D E R

“This appeal is directed against the order dated 13.10.2023 by which an application is filed under Section 9 of the Insolvency and Bankruptcy Code, 2016 (Code). Counsel for the appellant has submitted that the appellant has been proceeded against ex-parte and in this regard it has been noted by the Tribunal that notice was issued on 28.03.2023 but it could not be delivered in ordinary mode, therefore, substituted service was order to be effected in two newspapers. It is submitted that the substituted mode service cannot be resorted to until and unless the tribunal is satisfied that the Respondent could not be served in the ordinary mode.

It is argued that notice under Section 8 was issued by the operational creditor on 17.12.2021 on the address bearing Building No. B-300, Unit B, Indospace Industrial Park 104, Pollvakkam, Sriperumbuthur Main Road, Thiruvallur, Tamil Nadu- 602002. Reply to this notice was given on 25.01.2022 by the Appellant (Respondent in the petition) but after 10 months of the reply the application under Section 9 was filed on 05.11.2022 but incidentally on the same day the appellant shifted its Registered office to SF No: 850/2A2 Hussain Nagaram, Mappedu Thiruvallur. It is further submitted that notice by the court was issued much after the shifting of the address i.e. 28.03.2023 and that is the reason that the notice could not be received by the appellant herein. On the other hand, Counsel for the Respondent has submitted that he has served the appellant through his notice and there were emails also sent to him about the pendency of the petition but despite that the appellant herein did not make any representation in that application filed under Section 9 of the Code. In this regard, Counsel for the Appellant has submitted that notice has to be given by the Tribunal which has not been served in accordance with law and hence the ex-parte order is patently illegal. Since there are arguable points involved in this appeal, therefore, issue notice to the Respondent. At this stage Counsel appearing on behalf of the Respondent with advance notice accepts the same and prays for time to file reply. Let the reply be filed on or before 16.11.2023 with advance copy to the Counsel for the Appellant who may file the rejoinder by 21.11.2023. List this appeal for hearing on 28.11.2023 the case shall be listed in the fresh matters but for hearing. In the meantime, operation of the impugned order shall remained stayed subject to the deposit of an amount involved of Rs. 1,34,44,354/- by demand draft with the Registrar at the Chennai Bench”.

“1.

It is submitted that pursuant to the Impugned Order dated 13^th October, 2023 passed by the National Company Law Tribunal, Chennai Bench in CP(IB) No. 28 / CHE / 2023 ordering Corporate Insolvency Resolution Process against M/s. Kolon Glotech India Pvt. Ltd., the Appellant herein had filed the COMPANY APPEAL (AT)(INS) (CHE) NO: 386 OF 2023 before this Hon'ble Tribunal, wherein vide order dated 7^th November 2023, this Hon'ble Tribunal was pleased to grant interim stay on the operation of the Impugned Order subject to deposit of Rs. 1,34,44,354/- by demand draft with Registrar at the Chennai Bench.

2.

It is submitted that pursuant to the above, Demand Draft No. 004439 for Rs.1,34,44,354 drawn on Axis Bank, Sriperumbudur in favour of HR Polycoats Pvt. Ltd. was deposited with the Deputy Registrar of the Hon'ble National Company Law Appellate Tribunal, Chennai and the same was taken note of by the Hon'ble National Company Law Appellate Tribunal in its order dated 28^th November 2023.

3.

It is submitted that the Corporate Debtor and the 1^st Respondent have entered into a settlement. The Corporate Debtor has agreed to pay a sum of Rs. 1,05,00,000/-(Rupees One Crore Five Lakhs Only) as full and final settlement to the 1^st Respondent through Cheque bearing No. 000027 dated 18/12/2023 drawn on HDFC Bank, Sriperumbudur in favour of HR Polycoats Private Limited. The 1^stRespondent accepts the same towards full and final settlement of all dues between the Parties. There shall be no amount that is due and payable Party upon payment of Rs. 1,05,00,000/- (Rupees One Crore Five Lakhs Only). The Memorandum of Compromise and the Copy of Cheque is enclosed as Annexure 1 & 2.

4.

It is therefore jointly prayed by the Appellant and the 1^st Respondent that the Corporate Insolvency Resolution Process against the Corporate Debtor be terminated, the Impugned Order dated 13^th October, 2023 passed by the National Company Law Tribunal, Chennai Bench- II in CP(IB) No. 28/CHE/2023 be set aside, and the proceedings in CP(IB) No. 28/CHE/2023 be dismissed/ceased.

5.

The Appellant maybe permit to withdraw the Demand Draft No. 004439 for Rs.1,34,44,354 drawn on Axis Bank, Sriperumbudur in favour of HR Polycoats Pvt. Ltd. deposited in with the Deputy Registrar of the Hon'ble National Company Law Appellate Tribunal, Chennai.

It is humbly prayed that this Joint Memo between the Appellant and the 1^stRespondent be taken on record and this Hon'ble Tribunal be pleased to pass such orders as prayed for by the Parties or any other orders as it may deem fit and thus render justice”.