Citadel Eco Build Private Limited vs Biltech Building Elements Limited

Citadel Eco-Build Pvt. Ltd. ...Appellant

Versus

Biltech Building Elements Ltd. ...Respondents

Present: For Appellant: Mr. Anuj Tiwari, Mr. Saurabh Kr. Mishra, Mr. Rahul Kumar, Advocates For Respondent: Mr. Sujoy C Datta, Ms. Nishtha Khurana, Mr. Aarsheya Sharda, Ms. Mahima Shekhawat, Advocates

ORDER

13.07.2023: Heard Learned Counsel for the Appellant and Learned

Counsel for the Respondent.

2. This Appeal has been filed against the Order dated 20th June, 2023 by

which I.A. No. 2590 of 2023 filed by the Appellant under Rule 49(2) has been

rejected.

3. Learned Counsel for the Appellant submits that in the Company

Petition, the Adjudicating Authority passed an order on 22.02.2023 by which

Operational Creditor was directed to serve a copy of the petition to the

Corporate Debtor and thereafter matter was fixed for 11th April, 2023 on which

date due to paucity of time matter could not be heard and thereafter date was

fixed 16th May, 2023. On 16th May, 2023, none appeared on behalf of

Corporate Debtor and order was reserved after hearing the Operational

Creditor. An I.A. was filed by the Corporate Debtor praying for recall of the -2-

Order. The grounds which was taken in the Application were in paragraph 8

to 10. It was submitted that due to technical connectivity issue, Appellant

could not make submissions and further Reply was filed on 10th April, 2023.

Adjudicating Authority rejected the Application observing that neither the

Corporate Debtor appeared nor filed the Reply.

4. Learned Counsel for the Respondent refuting the submissions of

Learned Counsel for the Appellant submits that the submission of the

Appellant that there was connectivity issue cannot be accepted since

Application was filed after about one month and it is further submitted that

Reply which was filed by the Appellant was in defect hence was rightly not

considered.

5. We have considered the submissions of Learned Counsel for the parties

and have perused the record.

6. The date on which the matter was reserved was the first date of actual

hearing when the Adjudicating Authority directed the Operational Creditor to

serve the copy of the petition to the Corporate Debtor. Corporate Debtor as per

order of the Adjudicating Authority filed his reply on 10th April, 2023 as was

pleaded in the Application. The Adjudicating Authority in the order impugned

has noted that neither the Corporate Debtor appeared nor filed a Reply. Effect

would be that Reply which was filed by the Corporate Debtor is not to be

considered while delivering the order.

Company Appeal (AT) (Insolvency) No. 866/2023 -3-

7. Learned counsel for the Respondent submitted that Reply was in defect.

Even if the Reply was in defect, the Adjudicating Authority could have directed

for removal of the defect and considered the Reply.

8. We thus are of the view that Appellant has made out a sufficient cause

for recall of the Order which cause were not adverted to by the Adjudicating

Authority in the impugned order. We are of the view that ends of justice will

be served in setting aside the order dated 20th June, 2023 and directing the

Adjudicating Authority to give at least one hearing date for both the parties

and reply which was filed by the Appellant may also be taken into

consideration while deciding the matter.

9. We record the submission of Learned Counsel for the Appellant that no

adjournment shall be sought by the Appellant before the Adjudicating

Authority.

With these directions, we dispose of the Appeal. Adjudicating Authority

shall endeavour to dispose of the matter as early as possible.

[Justice Ashok Bhushan] Chairperson

[Mr. Barun Mitra] Member (Technical)

Basant/nn

Company Appeal (AT) (Insolvency) No. 866/2023