2023 (3) TMI 174 - AT - Insolvency & Bankruptcy

CIRP - Ex-Parte Order - appeal barred by time limitation or not - NCLT admitted the application - Pre-Existing Dispute or not - HELD THAT:- It is seen from the record that though the Impugned Order of Admission is passed on 21.03.2022, the Operation of the Order was stayed vide Order dated 25.03.2022 till 05.05.2022, that is the date on which the Order in I.A.33/2022 was passed. It is apparent from the record that the Appellant has diligently pursued their remedy of seeking recall of the Ex-Parte Order, passed against the Corporate Debtor, and therefore the period spent before the Adjudicating Authority, pending adjudication, would not be included in computing the Limitation. This Tribunal is of the considered view that when the Operation of the Impugned Order dated 21.03.2022 was suspended till 05.05.2022, no Appeal could have been preferred by the Appellant herein, pending the adjudication before the Adjudicating Authority. The Appellant had challenged both Orders dated 21.03.2022 and 05.05.2022 by filing both these Appeals before this Tribunal on 09.05.2022 which is well within the period of Limitation and thereforethe Company Appeal (AT) (CH) (Ins.) No.158/2022 is not barred by Limitation.

This Tribunal is conscious of the fact that any Admission under Section 9 of the Code, it is also mandated that the existence of a Pre-Existing Dispute is to be ascertained by the Adjudicating Authority.

Keeping in view the peculiar facts of the attendant case that the Corporate Debtor had replied on 06.01.2022 to the Section 8 Demand Notice dated 21.12.2021, highlighting the Pre-Existing Dispute; the Section 9 Application was filed on 07.01.2022 and the copy of the Reply Notice was delivered to the first Respondent on 08.01.2022; that the matter was listed before the Adjudicating Authority on 10.02.2022 and on 17.03.2022, but the Respondent had failed to place this Reply before the Adjudicating Authority either on 10.02.2022 or on 17.03.2022; this Tribunal is of the earnest view that in the interest of justice, an opportunity be given to the Appellant herein to be heard on merits.

This Tribunal finds it a fit case to remand to the Adjudicating Authority to decide the matter on merits, specifically keeping in view that in paras 13 & 20 of the Impugned Order, the Adjudicating Authority has observed that even if the Reply Notice dated 06.01.2022, was placed on record, the same conclusion, as was drawn in respect of the Reply Notice dated 04.10.2021, could have been drawn in respect of the said Notice, since, no document in support of the proof of the contention of the said Notice dated 06.01.2022 also came forth.

Having regard to the fact that the Adjudicating Authority has touched upon the merits of the case by adverting to the submissions made in the Reply Notice, this Tribunal, is of the earnest view that an opportunity be given to the Appellants to raise all contentions and put forth the communication between the parties and argue their case on merits.

The Impugned Orders are set aside and the Adjudicating Authority (Tribunal), shall hear both parties on merits and decide the matter afresh, uninfluenced by any of the observations made by this Tribunal in this Order - Appeal allowed.