Gyan Chandra Misra vs Three C Universal Developers Private ...
- CitationCompany Appeal (AT) (Ins.) No. 471 of 2022
Ratio decidendi
The rule this decision rests on
An application for relief under the Insolvency and Bankruptcy Code must be read according to the provisions it is actually brought under, as stated in the application and its prayer, and not according to a narrower provision the adjudicating authority assumes it rests on; an order that dismisses such an application as not maintainable under one provision, when it was filed under Section 60(5) read with Rule 49 and Regulation 11, is vitiated by that error in approach and is liable to be set aside and remanded for fresh consideration on the application as filed.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
Gyan Chandra Mishra ...Appellant
Versus
Three C Universal Developers Pvt. Ltd. & Ors. ...Respondents
Present: For Appellant: Mr. Gaurav Mitra, Ishan Roy Chowdhury, Advocates For Respondents: Mr. Abhishek Anand, Mr. Mohak Sharma, Mr. Nikhil Jain, Advocates
ORDER
(Per: Justice Rakesh Kumar Jain:)
28.09.2022: This appeal is directed against the order dated 18.04.2022
passed by the Adjudicating Authority (National Company Law Tribunal, New
Delhi Bench, Court No. II) by which an application bearing I.A. No. 1688 of
2022 filed by the Appellant under Section 60(5) read with Rule 49 of
Insolvency and Bankruptcy Code, 2016 (in short 'Code') read with Regulation
11 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution
Process for Corporate Persons) Regulation, 2016 (in short 'Regulations') has
been dismissed only on the ground that an application filed under Section 49
of the Code is not maintainable.
2. At the outset, Counsel for the Appellant has submitted that there is an
error on the part of the Adjudicating Authority in not appreciating the facts
on record much less the application (Annexure P2) which was filed under Section 60(5) read with Rule 49 of the Code and not only Rule 49 of the Code.
In this regard, he has drawn our attention to Pg. 28, 38 and also to Pg. 48
containing the prayer.
3. Counsel for Respondent has fairly conceded that the application has in
fact been filed under Section 60(5) and not only Rule 49 of the Code.
4. In view thereof, we are of the considered opinion that there is an error
in the approach of the Adjudicating Authority in dealing with the application
filed by the Appellant considering it to have been filed under Section 49 alone
whereas the application was not filed under Section 49 alone but it has been
filed under Section 60(5) read with Rule 49 of the Code read with Regulation
11 of the Regulations.
5. This aspect of the matter is sufficient to set aside the order and remand
back to the Adjudicating Authority to consider the application once again in
terms of Section 60(5) read with Rule 49 of the Code read with Regulation 11
of the Regulations. Consequently, the appeal is allowed and the impugned
order dated 18.04.2022 is set aside. The matter is remanded back to the
Adjudicating Authority to decide again, taking into consideration the
application as it is, having been filed under Section 60(5) read with Rule 49
of the Code read with Regulation 11 of the Regulations.
6. The parties are directed to appear before the Adjudicating Authority on
10th October, 2022.
7. It is needless to mention that we have not touched any part of the merit
of this case which has been kept open.
8. Counsel for the parties may raise all the issues available to them before
the Adjudicating Authority.
9. The Registry is directed to send the copy of this order to the concerned
Adjudicating Authority for information.
[Justice Rakesh Kumar Jain] Member (Judicial)
[Mr. Naresh Salecha] Member (Technical)
SC/RR
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