Evo Green Trading Pvt Ltd vs Volkswagen Finance Pvt Ltd

National Company Law Appellate Tribunal, New Delhi Principal Bench COMPANY APPEAL (AT) (Insolvency) No. 278 of 2021 (Arising out of Order dated 16.02.2021 passed by National Company Law Tribunal, New Delhi Bench, Court -IV in CP (I.B.) No.- 361/ND/2020)

IN THE MATTER OF:

EVO Green Trading Pvt. Ltd. Through its Director Mr. Karan Bansal, Office at: - 1/5, WHS Kirti Nagar, .....Appellant New Delhi- 110015 (Corporate Debtor)

Versus

Volkswagen Finance Pvt. Ltd. Registered Office at: 3rd Floor, WING-A, Silver Utopia Cardinal, Gracious Road, Chakala, Andheri Mumbai, Mumbai City, MH- 400099

Also At:-

Volkswagen Finance Pvt. Ltd. 2nd Floor, Enkay Tower, Vanijya Nikunj, Udyog Vihar, Phase V, Gurugram, Haryana-122016 .....Respondent (Financial Creditor)

Appellant: Mr. Murari Kumar & Mr. Achint Kumar, Advocates. Respondent: None. JUDGEMENT

Anant Bijay Singh (J)

1. The Instant Appeal bearing Company Appeal (AT) (Insolvency) No. 278 of

2021 filed on behalf of EVO Green Trading Pvt. Ltd. being aggrieved and satisfied -2-

by the Impugned Order dated 16th February, 2021 passed by the Hon'ble

Adjudicating Authority, National Company Law Tribunal, New Delhi, Court-IV in

CP (IB)- 361/ND/2020 is hereunder.

2. Learned Adjudicating Authority passed the following orders: -

"Learned Counsel for the Corporate Debtor states that

they have been recently engaged and seeks further time

to comply the order dated 16.12.2020, when last

opportunity was given to file reply within one week,

subject to cost of Res. 15,000/- but till date order is not

complied and further time is sought. Right to file reply

is closed."

3. Learned Counsel for the Appellant while assailing the Impugned Order

submitted that the Respondent (Financial Creditor) has filed an application

under Section 7 of the Insolvency & Bankruptcy Code, 2016 (in short 'IBC')

against the Appellant (Corporate Debtor) on 09.01.2020 claiming an overdue

amount of Rs. 74,97,822/- (Rupees Seventy-Four Lakhs Ninety-Seven Thousand

Eight hundred and Twenty-Two Only).

4. Further, on 11.02.2020, the Hon'ble NCLT Delhi was pleased to issue a

notice to the Respondent in CP (IB)-361/ND/2020 and further on 04.03.2020,

Learned Counsel for the Respondent accepted the Notice and undertook to file

Company Appeal (AT) (Insolvency) No. 278 of 2021 -3-

Vakalatnama within three days and Reply within ten days and the matter got

adjourned for 17.04.2020.

5. It was further submitted that in between Covid-19 Pandemic intervened

and the Tribunal got lockdown and was not functioning.

6. Further, the matter was again listed before the Hon'ble NCLT on

16.12.2020 and taking under all the facts on 04.03.2020 on that date Learned

Counsel for the Respondent undertook to file Reply within ten days again time

was prayed for, on the grounds that one family member was suffering from

COVID-19.

7. One-week time was granted by the Learned Tribunal to file Reply Affidavit

and last opportunity was given to the Learned Counsel for the Respondent

subject to payment cost of Rs. 15,000/- (Rupees Fifteen Thousand Only) to

Applicant. Further, Rejoinder be filed within one week, thereafter and the matter

was directed to be listed on 18.01.2021. Copy of the Order dated 16.12.2020 is

marked at Annexure A-6 at Page No. 37 of the Appeal Paper Book.

8. Learned Counsel for the Appellant while referring to Annexure A-7 at Page

No. 38 which mentions the conversation on WhatsApp between the Learned

Counsel for Appellant and Learned Counsel for the Respondent reveals that on

21.12.2020 the Learned Counsel for Appellant was informed that Reply had not

been filed and the Court has imposed a cost of Rs. 25,000/- (Rupees Twenty-

Five Thousand Only).

Company Appeal (AT) (Insolvency) No. 278 of 2021 -4-

9. It was submitted that there was a conversation between the Appellant and

his earlier Counsel and further it reveals that his earlier Counsel was

professionally negligent because of him the Learned Tribunal order cost and the

Reply was also not filed.

10. It was submitted that on 14.02.2021 the present Learned Counsel was

engaged by the Appellant who filed a fresh Vakalatnama on 15.02.2021 before

the Hon'ble NCLT in CP (IB)- 361/ ND/2020, copy of the Vakalatnama is marked

at Page No.- 41 of the Appeal Paper Book.

11. On 16.02.2021, Hon'ble Tribunal granted one week more time to file the

Reply subject to payment of cost of Rs. 15,000/- (Rupees Fifteen Thousands

Only) which was imposed in the Order dated 16.12.2020.

12. It was submitted by the Learned Counsel for the Appellant while assailing

the Impugned Order no reason given for imposing the cost by the Learned

Tribunal and due to further negligence of his earlier counsel the Appellant should

not suffer.

13. The cost of Rs. 15,000/- (Rupees Fifteen Thousand Only) imposed and also

right to file Reply which was closed vide Impugned Order be set aside and the

Appellant be allowed to file his Reply.

14. Heard the Learned Counsel for Appellant and pursue the aforesaid copy of

the conversation made between the earlier Counsel and the Appellant is marked

at Annexure- A-5 at Page No. 35 & 38 of the Appeal Paper Book.

Company Appeal (AT) (Insolvency) No. 278 of 2021 -5-

15. Learned Counsel for the Appellant had nowhere made any averment in his

Memo of Appeal that he has made complaints against his earlier counsel for

professional negligence to the State Bar Counsel, Delhi.

16. Further, the Impugned Order was passed on 16.02.2021 at Page No. 29 of

the Appeal Paper Book at Annexure A-1 that the Hon'ble Tribunal taken a note

of this earlier Order dated 16.02.2021 whereby one last opportunity was given to

file Reply Affidavit within one-week time, subject to deposition cost of

Rs. 15,000/- (Rupees Fifteen Thousand Only) but the Order was not complied.

So, right to Reply was closed.

17. Further, from the perusal of the records the Learned Adjudicating

Authority directed that the matter to be listed on 16.03.2021.

18. Further, from the perusal of the record it appears that Instant Appeal was

filed before this Hon'ble Tribunal on 19.03.2021, after expiry of the date fixed by

the Learned Adjudicating Authority.

19. This shows that the Appellant was not serious in pursuing his remedy

before the Learned Adjudicating Authority.

20. In view of the discussion made above, we do not find any reason to interfere

with the Impugned Order.

21. So, the Impugned Order is hereby affirmed and the said Appeal is

dismissed.

22. The Registry is directed to upload this Judgement on the website of this

Appellate Tribunal.

Company Appeal (AT) (Insolvency) No. 278 of 2021 -6-

23. Registry is directed to send a copy of the Judgement to the National

Company Law Tribunal, New Delhi Bench.

[Justice Anant Bijay Singh] Member (Judicial)

[Ms. Shreesha Merla] Member (Technical) NEW DELHI 09th April, 2021

Sim.

Company Appeal (AT) (Insolvency) No. 278 of 2021