Indiabulls Housing Finance Limited ... vs Sanjay Kakade

IN THE MATTER OF: Indiabulls Housing Finance Ltd. ...Appellants (Now Known as Sammaan Capital Ltd.) Versus Sanjay Kakade ...Respondents

Present: For Appellant : Mr. Sumesh Dhawan, Ms. Vatsala Kak, Mr. Shaurya Shyam, Advocates.

For Respondents : Mr. Saurabh Ajay Gupta, Ms. Srishti Prabhakar, Mr. Ritik Gupta, Advocates.

ORDER

(Hybrid Mode)

03.10.2024: This appeal is filed against the order dated 28.08.2024 by

which an application filed under Section 95 of the IBC, 2016

C.P.(IB)/588(MB)/2023 has been dismissed for non-prosecution and the I.A.

No. 43/2024 filed by the Resolution Professional has been rendered

infructuous.

2. Issue Notice.

3. Mr. Saurabh Ajay Gupta accepts notice in the court.

4. We have heard counsel for the parties and perused the record. Counsel

for the appellant has submitted that as per the impugned order the case was first adjourned on the request of both the counsel on 20.03.2024, again by

both the counsel it was posted on 15.05.2024 and again on the request by both

the counsel it was posted for hearing on 28.06.2024. However, on 28.06.2024

the financial creditor/ appellant stated that he had no instructions regarding

the settlement but the court has dismissed the case on that day on the ground

that the appellant has not addressed the arguments. Counsel for the appellant

has submitted that the Tribunal has taken the extreme view in dismissing the

application otherwise the appellant was ready to argue the case.

5. Counsel for the respondent has tried to support the impugned order, but

this is one such case which was being adjourned from time to time on the

request of both the counsel for the parties and when on 28.06.2024, counsel

for the appellant made the statement that he had no special instructions for

the settlement with the respondents, the court dismissed the case for non-

prosecution on the ground that the appellant refused to argue on the date.

6. It is our considered opinion, on that date when information was given by

the appellant to the court that there is no likelihood of a settlement, the court

should have adjourned the case for arguments granting at least one

opportunity to the appellant to prepare his case. In such circumstances, we do

not approve the dismissal of the case of the appellant for non-prosecution by

the impugned order and therefore the same is hereby set aside. The

C.P.(IB)/588(MB)/2023 filed by the appellant and I.A. No.43/2024 filed by the

Comp. App. (AT) (Ins) No. 1890 of 2024 & I.A. No. 6983, 6984 of 2024 2 of 3 RP are both hereby restored to its original number and the case is remanded

back to the Tribunal to decide on merits. The parties are directed to appear

before the Tribunal on 20.11.2024.

[Justice Rakesh Kumar Jain] Member (Judicial)

[Barun Mitra] Member (Technical)

[Naresh Salecha] Member (Technical) harleen/rr

Comp. App. (AT) (Ins) No. 1890 of 2024 & I.A. No. 6983, 6984 of 2024 3 of 3