Ardor Global Pvt. Ltd vs Nirma Industries Pvt. Ltd

Ardor Global Pvt. Ltd. ... Appellant

Versus

Nirma Industries Pvt. Ltd. ... Respondent

Present: For Appellants: - Shri Virender Ganda, Senior Advocate with Shri Ashok Bhailal Shah, Shri Arvind Kumar and Ms. Henna George, Advocates

ORDER

21.08.2017 The appellant has preferred this appeal against order dated

11th July, 2017 passed by the learned Adjudicating Authority (National

Company Law Tribunal), Ahmedabad Bench, Ahmedabad (hereinafter

referred to as 'Adjudicating Authority') in C.P. (I.B.) No. 34/9/NCLT/AHM/

2017. The order reads as follows:

"Learned Advocate Mr. Nandish Chudgar present for

Operational Creditor/ Petitioner. Learned Advocate Mr.

Arjun Sheth present for Respondent.

Objections filed by Learned Counsel for Respondent.

Heard arguments of Learned Counsel for petitioner and

Respondent.

During the course of arguments, it is noticed that there are

following defects in the Application. 2

1. In respect of the written communication flied by IRP

inform no. 2.

2. In respect of the affidavits of Mr. Jitendra .Patel dated 26.05.201 7filed along with the petition.

It is contended by the Learned Counsel for the petitioner

that there is no defect in the written communication filed by

IRP even if such defect is there it is rectifiable.

It is contended by the Learned Counsel for Respondent that

defect pointed out is a defect which cannot be rectified.

Coming to the affidavits this Adjudicating Authority is of a

view that defects in the Affidavit are rectifiable.

At this stage Learned Counsel appearing for the petitioner

on the instructions of his client requested this Tribunal to

grant leave to withdraw this petition with liberty to file

fresh petition.

Learned Counsel appearing for the Respondent opposed

the same.

Rule 8 of the Adjudication Rules gives discretion to the

Adjudicating Authority to permit withdrawal of the petition

of the petition on the request made by the petitioner before

its admission.

Petitioner is permitted to withdraw this petition with liberty

to file fresh petition if so advised.

Petition is disposed of accordingly." 3

2. Learned counsel' for the appellant submits that once the defect was

pointed out, then it was mandatory for the Adjudicating Authority to allow

seven day' time to the 'Operational Creditor' to remove the defect and it has no

authority to allow the 'Operational Creditor' to withdraw the application, but

such submission cannot be accepted as it is always open to the Adjudicating

Authority to allow the party(s) to withdraw an application and to grant liberty

of filing a fresh application before admission of a case and where default has

not been decided, in view of Rule 8 of the Insolvency & Bankruptcy (Application

to Adjudicating Authority) Rules, 2016, which is as follows:

"8. Withdrawal of application.-- The Adjudicating

Authority may permit withdrawal of the application made

under rules 4, 6 or 7, as the case may be, on a request made

by the applicant before its admission."

3 Next it was contended that filing of the subsequent petition will be hit by

'constructive res judicata' but we do not agree with such submission, as no

decision was given by the Adjudicating Authority while allowing a party to

withdraw the application with liberty to file a fresh application.

4. In the absence of any merit, the appeal is dismissed. However, in the

facts and circumstances of the case, there shall be no order as to costs.

[Justice S.J. Mukhopadhaya I Chairperson

[Balvinder Singh] Member (Technical) / ng/