Altico Capital India Limited vs Ajay Agarwal

III, have been assailed, with the consent of both the parties both

the appeals were taken up together and are being disposed off by

this common order.

2

2. It is not in dispute that in both the appeals short orders were

passed by the Learned NCLT in original application i.e. CPs in

which separate IAs were filed. In Company Appeal (AT)

No.765/2021 order dated 09.07.2021 is under challenge. It is apt

to reproduce the same hereinbelow:-

"IA 1062/2021: The above IA is filed by the Financial Creditor

under Section 95 of IBC against the personal guarantor.

However, on an enquiry from the Bench it came out that the

Corporate Debtor for which the personal guarantee has been

given is not under CIRP. In view of the above, the present IA

cannot be prosecuted and therefore above IA 1062/2021 is

disposed of and CP 293/2020 is also dismissed."

3. Similarly in the Company Appeal (AT) No.766/2021 on the

same date i.e. 09.07.2021, almost similar order was passed which

is under challenge. The impugned order is reproduced

hereinbelow:-

"IA 1063/2021: The above IA is filed by the Financial Creditor

under Section 95 of IBC against the personal guarantor.

However, on an enquiry from the Bench it came out that the

Corporate Debtor for which the personal guarantee has been

given is not under CIRP. In view of the above, the present IA 3

cannot be prosecuted and therefore above IA 1063/2021 is

disposed of and CP 174/2020 is also dismissed."

4. It is not in dispute that in both the CPs, IAs were filed mainly

with a prayer for passing order allowing the financial

creditor/assignor to amend the company petition, deleting the

financial creditor/assignor as the financial creditor and add the

assignee as the financial creditor in the company petition. The

said application was listed before the NCLT. However, the learned

NCLT by the impugned order while disposing off IA application

virtually dismissed the CP. The order does not indicate any

plausible reason for passing final order on the CP. It is admitted

that in both the CPs application for initiation for CIRP was pending

and in view of some imperative reasons the IA was filed for

substituting the parties. Since the impugned order indicates no

plausible reason, we are of the opinion that impugned order in

both the appeals may be set aside.

5. Accordingly the impugned order dated 09.07.2021 in both

the appeals are hereby set aside and the matter is remitted back

to the NCLT to pass order afresh after giving full opportunity of

hearing to all the parties assigning some plausible reason. The

parties would be at liberty to bring on record before the NCLT by 4

filing necessary affidavit/application, facts in respect of

subsequent development which has taken place after passing of

the impugned order. It is clarified that we have not recorded any

opinion on merit of the case.

With the above observations both the appeals are allowed and

the matter is remitted back to NCLT.

(Justice Rakesh Kumar) Member (Judicial)

(Dr. Alok Srivastava) Member (Technical) Bm/md