M/S Ansal Properties And ... vs M/S Dalmia Group Holdings

Ansal Properties and Infrastructure Ltd. Through F. N. Rai ...Appellant

Versus

Dalmia Group Holdings Respondent

Present: For Appellant: Mr. Ankit Tripathi, Mr. Sujoy Datta and Mr. Ankit Sharma, Advocates. For Respondent: Ms. Ruby Singh Ahuja, Hancy Maini and Mr. Varun Khanna, Advocates.

ORDER

(Virtual Mode)

09.03.2022: Heard learned counsel for the Appellant as well as learned

counsel appearing for the Respondent, Ms. Ruby Singh Ahuja. This Appeal

has been filed against order dated 07.01.2022 passed by the Adjudicating

Authority in CP (IB) 639/ND/2021. On 22.10.2021, the Adjudicating

Authority passed following order:

"ORDER Notice be issued upon the Respondent by all modes including the email ID of the Respondent. Affidavit of service must be filed within a week from today. Reply be filed within two weeks after the receipt of the notice. Rejoinder, if any, within a week from the date of receipt of the reply. List the matter on 30th November, 2021.

2. On the next date i.e. on 30.11.2021, none appeared for the Respondent.

Adjudicating Authority on 30.11.2021 passed following order:

Cont'd.../ 2

"ORDER Ld. Counsel for the petitioner appears and submits that he has already filed the affidavit of service, which is on record. Despite service, none has appeared for the respondent. Last opportunity is given to the respondent to represent, failing which an order shall be passed in accordance with law. List the matter on 7th January, 2022."

3. On 07.01.2022 when matter was taken up, the Adjudicating Authority

observed:

"ORDER Heard the Ld. Counsel for the Applicant as well as the Respondent. Ld. Counsel for the Respondent seeks adjournment to file Reply.

On perusal of the order dated 30th November, 2021, we notice that last opportunity was given to Respondent to file the reply. So considering this, the right to file the reply of the Respondent is hereby closed. List the matter for arguments on 24th February, 2022."

4. "Last opportunity was given to the Respondent to file the reply", after

making aforesaid observations the right to file reply was closed. Aggrieved by

this order Appellant has filed the present Appeal.

5. Learned counsel for the Appellant submits that there was no occasion

for the Adjudicating Authority to close the right to file reply of the Appellant

on 07.01.2022, which was the next date fixed after 30.11.2021, when

Appellant appeared and sought for time to file reply.

Company Appeal (AT) (Insolvency) No. 226 of 2022 3

6. Learned counsel for the Respondent, Ms. Ruby Singh Ahuja, vehemently

opposed the submission of the Appellant. She submits that when on

30.11.2021 order was passed giving last opportunity to the Appellant, they

had no right to ask for further time to file reply on 07.01.2022.

7. We have heard learned counsel for the Appellant and learned counsel

appearing for the Respondent.

8. The order dated 30.11.2021 only notices that none has appeared for the

Respondent and observation of the Court was "last opportunity is given to

the respondent to represent, failing which an order shall be passed in

accordance with law". Order dated 30.11.2021 cannot be read to mean that

last opportunity was given to the Respondent to file 'reply'. When the order

was for last opportunity to the Respondent to 'represent' and when on the

next date they appeared before the Adjudicating Authority through counsel,

they have every right to ask for time to file reply. We are not persuaded with

the argument of learned counsel for the Respondent that it was incumbent to

the Appellants to file reply.

9. We are of the view that the Adjudicating Authority has committed error

in rejecting the prayer of the Appellant by observing that last opportunity was

given to Respondent to file the reply, by earlier order hence the right of the

Respondent to file reply was closed. Order dated 07.01.2022 insofar as closing

the right of the Appellant to file reply is concerned is unsustainable and hereby

set aside. Learned counsel for the Appellant submits that he has already filed

reply before the Adjudicating Authority. In view of the submission of the

Company Appeal (AT) (Insolvency) No. 226 of 2022 4

Appellant that reply has already been filed that reply may be taken on the

record by the Adjudicating Authority. The Adjudicating Authority may proceed

in the matter and decide the application in accordance with law. The Appeal

is allowed accordingly.

[Justice Ashok Bhushan] Chairperson

[Dr. Alok Srivastava] Member (Technical)

Archana/nn

Company Appeal (AT) (Insolvency) No. 226 of 2022