THE NATIONAL COMPANY LAW TRIBUNAL NEW DELHI BENCH COURT-IV IN Company Application (IB) No. 1104 of 2020 IN THE MATTER OF:

KULDEEP KUMAR ……….…Operational Creditors/Applicants Versus FAIRWOOD INFRA & SERVICES PVT. LTD.

……………..Corporate Debtor/Respondent Under Rule 11 OF NCLT Rules, 2016.

CORAM:

SH. MANNI SANKARIAH SHANMUGA SUNDARAM, HON’BLE MEMBER (JUDICIAL)

DR. SANJEEV RANJAN, HON’BLE MEMBER (TECHNICAL)

Order Delivered on: 23.04.2024 PRESENT:

For the Applicant : Mr. Vaibhav Gaggar, Mr. Akash Chatterjee, Mr. Mrityunjay, Advs.

For the Respondent : Ms. Manju Singh, (Authorized Representative)

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ORDER

PER: DR. SANJEEV RANJAN MEMBER (T)

1. Under consideration is an application bearing Restoration Application (IBC)/56(ND)2023, filed under Rule 11 of National Company Law Tribunal Rules, 2016 seeking the following reliefs:

a. Allow the present application and restore the Company Petition bearing no. C.P. (IB) No. 1104(ND)

of 2020; and/or b. Pass any other relief/reliefs, which this Hon'ble Tribunal may think fit and proper in the facts and circumstances of the case, in the interest of justice.

2. As per the averments made in the application the applicants are the Operational Creditors in the Application bearing IB/1104/2020 which was filed under Section 9 of Insolvency and Bankruptcy Code, 2016 for initiation of Corporate Insolvency process against Corporate Debtor Fairwood Infra and Services Pvt. Ltd.

3. Further, it is submitted that during the hearing of pending admission of the Main Application bearing IB/1104/2020, a settlement was arrived between the parties, wherein the Corporate Debtor had undertaken to repay the dues of the Operational Creditor. Pursuant to such settlement the Operational Creditor requested to withdraw the Company Petition bearing no. C.P. (IB) No. 1104/ND of 2020. Accordingly, this Page | 2 Restoration Application (IBC)/56(ND)2023 Adjudicating authority vide order dated 08.08.2022 dismissed the petition C.P. (IB) No. 1104/ND of 2020 as withdrawn. The Order has been reproduced here-below –

4. Pursuant to the Settlement Agreement, the Corporate Debtor had paid two instalments to the Operational Creditor. Thereafter it has been submitted by the Applicant that the Corporate Debtor made default in payment subject to the Settlement Agreement.

5. Further, it has been submitted by the Applicant that the Corporate Debtor had failed to honour the terms of the settlement and therefore the Applicant has approached the Hon’ble Tribunal for restoration of the Company petition bearing CP(IB)

No.1104/ND of 2020.

Analysis and Findings

6. On perusal of the Order dated 08.08.2022, it is evident that the CP(IB) No.1104/ND of 2020 was allowed to be withdrawn on the submissions of the Applicant only and upon review of the documents it is found that the Settlement Agreement had not been placed on record. Further no liberty was granted by this Adjudicating Authority to restore the application.

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7. The present case is squarely covered by the ratio of order of Hon'ble NCLAT as held in SRLK Enterprises LLP. Vs. JALAN Transolutions (India) Ltd. [Company Appeal (AT) (Ins) No. 294 of 202] vide order dated 08.04.2021, in para (6) of the order as follows -

"6 …There is difference between withdrawal simpliciter The Hon’ble NCLAT has distingushied between Withdrwal simpliciter making statement that parties have settled. It is different when bringing the settlement on record, and making it a part of the order of withdrawal liberty is taken and brought on record to restore the proceedings in case of default. IBC is not a recovery proceeding where because the money or part of it has not come, the party may repeatedly come to the Court. Adjudicating Authority has rightly observed that no liberty to revive was there and so declined to interfere. The Appellant would be at liberty to pursue other remedies in law."

8. It is pertinent to note that the settlement agreement was enter