Edcl Infrastructure Limited vs Urban Infra Projects Pvt. Ltd

EDCL Infrastructure Ltd. ...Appellant(s)

Versus

Urban Infraprojects Pvt. Ltd. ...Respondent(s) Present: For Appellant : Mr. Abhijeet Sinha, Sr. Advocate with Mr. Swatarup Banerjee, Mr. Abhirup Dasgupta, Ms. Jayashree Shukla Dasgupta, Advocates. For Respondents : Mr. Shaunak Mitra, Mr. Raghunath Ghose, Mr. Santanu Ghosh, Advocates.

ORDER

(Hybrid Mode) 25.09.2024: IA No. 5474 of 2024 This is an application praying for condonation of re-filing delay. In

paragraph 3 to 8 wherein the sufficient reasons have been given by the

appellant for condonation of re-filing delay. Re-filing delay is condoned.

2. Heard Shri Abhijeet Sinha, Ld. Sr. Counsel for the Appellant and Shri

Mitra, appearing of the Respondent.

3. The appeal has been filed against the order dated 08.02.2024 passed

by Adjudicating Authority in I.A. (IB) No. 2105/KB/2023 which was filed by

the corporate debtor praying for dismissal of the Section 7 application which

was filed by the financial creditor which application has been heard and

rejected by the impugned order.

4. Ld. Counsel for the Appellant submits that there were several issues

which were raised in the application filed by the appellant which could have

CA (AT) (Ins) No. 1030, 917 of 2023 2

been substantial grounds in Section 7 application. Adjudicating Authority in

the impugned order has made some observations whereas on certain issues

no findings have been returned.

5. Shri Mitra, Ld. Counsel appearing for the Respondent submits that it

was applicant CD who himself invited the court to consider the issues which

ought to have been addressed in Section 7 application and Appellant having

invited the court to consider the issue cannot be allowed to re-agitate the

issues before the Adjudicating Authority again in Section 7 application.

6. We have considered the submissions of the Ld. Counsel for the parties

and perused the record.

7. In Section 7 application filed by the financial creditor appropriately all

issues are to be raised at the hearing of Section 7 application and corporate

debtor who is given opportunity to file a reply is free to raise all issues. IBC

is a proceeding which needed to be addressed urgently looking to the

various issues especially the issues pertaining to the insolvency of the

corporate debtor which is sought to be resolved in the proceedings.

8. We thus, are of the view that all issues are required to be considered

at the time of hearing of Section 7 application. Coming to the order

impugned in so far as the issue under Section 10 A is concerned both the

parties are not at disagreement that no findings have been returned by

Adjudicating Authority. When no findings have been returned by

Adjudicating Authority, it shall be open to the Adjudicating Authority to

consider the submissions and come to the findings. 3

9. Ld. Counsel for the Appellant has further submitted that there were arguments on basis of Section 186 of the Companies Act, 2013 addressed, although Adjudicating Authority has observed that there was no pleadings to that effect but after making this observation certain Judgement have been noticed and observations have been made with regard to argument of Section 186(2) in paragraph 37 and 38 of the Judgment.

10. Both the parties have submitted that Section 7 application is already listed for consideration before Adjudicating Authority tomorrow and on account of pendency of the appeal the application was adjourned many times.

11. In view of the fact that Section 7 application is listed tomorrow before the Adjudicating Authority. We are of the view that no useful purpose shall be served in keeping the appeal pending and considering the issues which can be very well addressed before the Adjudicating Authority by the parties. We only observe that observations made by the Adjudicating Authority in impugned order may not be treated to be expressions of any conclusive opinion and Adjudicating Authority is free to consider the submissions of the parties and take a decision in accordance with law.

12. We make it clear that the parties having already filed their pleadings the Adjudicating Authority may proceed to hear the application.

13. Subject to these observations, we dismiss the appeal.

[Justice Ashok Bhushan] Chairperson

[Barun Mitra] Member (Technical)

[Arun Baroka] Member (Technical)

sr/nn