Gupta Power Infrastructure Limited vs India Power Corporation Limited

IN THE MATTER OF: Gupta Power Infrastructure Ltd. ...Appellant Versus India Power Corporation Ltd. ...Respondent

Present: For Appellant: Mr. Saswat K. Acharya, Mr. Dhananjay Bhaskar Ray, Advocates. For Respondent: Mr. Tabrez Malawat, Mr. Rishav Banerjee, Ms. Rajarshi Banerjee, Ms. Rupali Jain, Mr. Syed Hamza, Mr. Sourajit Sarkar, Advocates.

ORDER

(Hybrid Mode)

05.07.2024: This appeal is directed against the order dated

17.07.2023 passed by the Adjudicating Authority (National

Company Law Tribunal, Kolkata Bench) by which an application

filed by the appellant under Section 9 of Insolvency & Bankruptcy

Code, 2016 (in short 'Code') for the resolution of their debt has been

dismissed on the ground that there is a pre-existing dispute and

therefore the application was not maintainable.

2. During the course of hearing, counsel for the appellant has

vehemently argued that the Ld. Tribunal has erred in not taking

into consideration the case set up by the appellant regarding

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successful completion and commissioning of the project. In this

regard, he has referred to the completion certificate dated

05.08.2019 attached as Annexure-A-9 as well as the email dated

12.08.2019 attached as Annexure-A-10. It is submitted that had

these two documents been taken into consideration while recording

its finding in paragraph 25 & 26 of the impugned order than

perhaps the decision would have been different altogether.

3. Counsel for the respondent has vehemently argued that the

Tribunal has taken into consideration all the facts and

circumstances and dismissed the application only because of the

reason that there was a pre-existing dispute before the issuance of

the demand notice, therefore, there is no error in the impugned

order for which the appeal may be allowed.

4. We have heard counsel for the parties and after examining the

record are of the considered opinion that the Ld. Tribunal has only

recorded its finding in paragraph 25 & 26 of the impugned order

taking into consideration the email sent by the respondent about

the deficiencies in the services rendered which tantamount to pre-

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existing dispute and not the case set up by the appellant in regard

to the completion of the project and also its commissioning.

5. Thus, in view of thereof, the Judgment/Order delivered by the

Ld. Tribunal is totally non-speaking and therefore, the same is

hereby set aside.

6. Since we are not making any observations on the merit of the

case, therefore, the matter is remanded back to the Ld. Tribunal by

restoring C.P. (IB) No. 05/KB/2021 to re-decide it after taking into

consideration all the documents placed on record by both sides and

shall pass a speaking order.

7. The parties are directed to appear before the Tribunal on

22.07.2024.

[Justice Rakesh Kumar Jain] Member (Judicial)

[Mr. Naresh Salecha] Member (Technical)

[Mr. Indevar Pandey] Member (Technical)

sa/rr

Company Appeal (AT) (Ins.) No. 1328 of 2023