Grand Arch Resident Welfare ... vs Ireo Private Limited

Grand Arch Resident Welfare Association ...Appellant

Versus

Ireo Pvt. Ltd. ...Respondent

Present: For Appellants: Mr. Chinmoy Pradip Sharma, Mr. Irfan Hasieb and Asiya Khan, Advocates For Respondents: With Company Appeal (AT) (Insolvency) No. 272 of 2022

IN THE MATTER OF:

Grand Arch Resident Welfare Association ...Appellant

Versus

Ireo Pvt. Ltd. ...Respondent

Present: For Appellants: Mr. Chinmoy Pradip Sharma, Mr. Irfan Hasieb and Asiya Khan, Advocates For Respondents:

ORDER

(Virtual Mode)

16.03.2022: Heard Mr. Chinmoy Pradip Sharma, Advocate for the

Appellant.

2. This Appeal has been filed against the Order dated 23.09.20221

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

Delhi, Court IV) in IA 4291/ND/2021 in IB-989/ND/2020. By which Order,

the Application filed by the Corporate Debtor to modify the Order dated 10th

December, 2020 has been allowed and the Reply filed by the Corporate 2

Debtor has been taken on record. The Appellant Home-Buyer

Association/Financial Creditor filed an Application under Section 7 of the

Insolvency and Bankruptcy Code, 2016 on which the Order was passed on

10.12.2020 as under:

"None appeared for the applicant. On 03.11.2020, Learned Counsel for the

Corporate Debtor had undertaken to file reply within two weeks but till date

no reply is filed and seeks further time. As a last chance to Corporate Debtor

to file reply within five days, failing which, right to file reply will be closed.

Rejoinder, if any, within five days hereinafter, with copy in advance to the

other side.

List on 14.01.2021."

3. Subsequently another Order was passed on 14.01.2021 relying on

earlier Order dated 10.12.2022 observing that 'Right to file Reply is closed'.

The Corporate Debtor thereafter filed an Application i.e. I.A. No. 4291 of

2021 praying that Order dated 10.12.2020 be modified and the Reply of the

Applicant Corporate Debtor be taken on record.

4. The Reply was filed along with the Application i.e. I.A. No. 4291 of

2021 which has been taken on record by the Impugned Order. Learned

Counsel for the Appellant contends that when the right to reply was cloased

on 10.12.2020 and the same was reiterated on 14.01.2021 there was no

power with the Adjudicating Authority to review its earlier Order by accepting

the Reply of the Applicant-Corporate Debtor. It is submitted that on account

of right to file reply having been closed by the Adjudicating Authority, right

accrued to the Applicant which could not have been taken away by the

Impugned Order.

Company Appeal (AT) (Insolvency) No. 271 and 272 of 2022 3

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

Appellant and perused the record.

6. From the facts brought on record, it is clear that Reply could not be

been filed by the Corporate Debtor and the right to file Reply was closed on

10.12.2020 which was again reiterated on 14.01.2021. Subsequently along

with the I.A. as above said, Copy of the Reply was annexed and request was

made to take the Reply on record by modifying the Order dated 10.12.2020.

Present is not the case where the Adjudicating Authority has exercised its

power of review on merits of any issue decided by the Adjudicating Authority.

Present is the case where with regard to the pleading i.e. accepting the Reply,

inherent power has been exercised by the Adjudicating Authority under Rule

11 of the NCLT, Rules. We are of the view that substantial justice has been

done by the Adjudicating Authority in taking the Reply on record. We have

further noticed that the Appellants are Home Buyer Association and Reply of

the Corporate Debtor being on record shall give a great assistance to the

Adjudicating Authority in adjudicating the issues raised by the Appellant i.e.

Financial Creditor. We are thus of the view that present is not the case where

this Tribunal should exercise its appellate power. The Appeal is dismissed.

[Justice Ashok Bhushan] Chairperson

[Dr. Alok Srivastava] Member (Technical)

Basant/nn

Company Appeal (AT) (Insolvency) No. 271 and 272 of 2022