Avr Overseas Private Limited vs Adinath Internationalnprivate ...

AVR Overseas Pvt. Ltd. ...Appellant Versus Adinath International Pvt. Ltd. ...Respondent Present: For Appellant: Mr. Karan Khanna, Advocate. For Respondent: Mr. Prakhar Bhatnagar, Advocate. ORDER

(Virtual Mode)

09.12.2021: Heard Learned Counsel for the Appellant as well as Learned

Counsel appearing for the Respondent. With the consent of the parties the

Appeal is being taken up for final disposal.

2. This appeal has been filed by the Appellant against order dated 11.10.2021

passed by the Adjudicating Authority (National Company Law Tribunal) New

Delhi, Court IV in I.A. No. 4579/ND/2021 in (IB) 348(ND)2020. An application

was filed by the Corporate Debtor to set aside the ex-parte order dated

18.08.2021, the said Application has been rejected.

3. In the present case, the CIRP proceedings were initiated and time was

granted to the Respondent, who is Appellant before us, to file its reply. On 2nd

February, 2021, the Adjudicating Authority passed following order:

"Order None appears for the Corporate Debtor. On 05.01.2021, 2 weeks' time was granted to file reply. Neither reply is filed, nor anybody is appearing. As a last chance 5 days'

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time is granted to file reply subject to the cost of Rs.10,000 to be paid to the Applicant. List the matter on 10.03.2021."

4. On 10.03.2021 again, the case was taken up and the court noticed that no

reply has yet been filed. It was informed that the main counsel met with an

accident, hence there was delay. It was noted that reply was served on the other

side one day before. Learned counsel for the Corporate Debtor submitted that

reply has been filed and he undertook that cost will be paid during the course of

the day. Court also granted time to file the rejoinder. Learned Counsel for the

Appellant submits that reply was filed on 09.03.2021 on which dated it was also

served upon the Counsel for the other side.

5. Matter was again taken up by the Court on 18.08.2021 on which date the

Court noticed that on the perusal of e-portal, the reply has not come on record.

The Court also noticed that copy of rejoinder is on record. None appeared on

behalf of the Corporate Debtor. It was also noticed that cost is paid but reply has

not come on record. The court directed to proceed ex-parte, which order was

sought to be recalled by filing the I.A. but was refused.

6. The Adjudicating Authority had refused to set aside the order dated

18.08.2021. Statement was also made before the Court that the reply was filed

in the physical form also. Court, however, observed that the status of reply on

e-portal shows awaited. On the above reasoning, the application was rejected.

7. Learned Counsel for the Applicant (Respondent before us) does not dispute

that he has received the reply on which he has also filed the rejoinder and he has

Company Appeal (AT) (Insolvency) No. 1016 of 2021 -3-

also received the cost. Learned Counsel for the Appellant made statement that

reply was filed in the physical form also. Even if, the reply in physical form was

not available, an opportunity ought to have been given to the file reply before the

court.

8. We are satisfied that present is the case in which rejoinder having been

filed by the Applicant and cost being paid to the Applicant/ Respondent before

us, the Court ought to have given opportunity to the Respondent/Appellant

before us to file reply. In the facts of the present case, ends of justice be served

in setting aside order dated 18.08.2021 as well as order dated 11.10.2021. We,

however, direct Learned Counsel for the Appellant to file reply in physical form

before the Adjudicating Authority alongwith copy of this order within two weeks,

which may be taken on record and the Learned Adjudicating Authority shall

proceed to hear the matter further in accordance with law. With these

observations, Appeal stands disposed off.

[Justice Ashok Bhushan] Chairperson

[Justice Jarat Kumar Jain] Member (Judicial)

[Dr. Alok Srivastava] Member (Technical) Archana/nn.

Company Appeal (AT) (Insolvency) No. 1016 of 2021