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M/S. Kee Projects Ltd vs Sharda Rawat

National Company Law Appellate Tribunal1 September 2017

Ratio decidendi

The rule this decision rests on

The Adjudicating Authority is bound to issue a limited notice to the corporate debtor before admitting an application under Section 9 of the Insolvency and Bankruptcy Code, 2016, for the purpose of ascertaining the existence of default and whether the application is complete or has any other defect; adherence to the principles of natural justice does not, however, require a full reasonable opportunity of hearing to the corporate debtor before the admission order is passed.

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

1NATIONAL COMPANY LAW APPELLATE TRIBUNALNEW DELHICompany Appeal (AT) (Insolvency) No. 139 of 2017IN THE MATTER OF:

M/s. Kee Projects Ltd. ... Appellant

Versus

Sharda Rawat ... Respondent

Present: For Appellant: Dr. Anurag Kumar Agarwal and Shri Umesh Mishra, Advocates

For Respondent: Shri Rakesh Mukhija, Advocate

ORDER

01.09.2017 The appellant has preferred this appeal against

judgement dated 6th July, 2017 passed by the Learned Adjudicating

Authority (National Company Law Tribunal), Principal Bench, New Delhi

(hereinafter referred to as 'Adjudicating Authority') in CO.PET.

No.662/2016. By the impugned order; learned Adjudicating Authority,

on a transfer petition of winding-up under Section 439 read with Section

443 read with Section 433(e) read with Section 434 of the Companies

Act, 1956, treated the application preferred by the respondent as an

application under Section 9 of the Insolvency and Bankruptcy Code,

2016 (hereinafter referred to as 'I&B Code') pursuant to the Central

Government Notification No. G.S.R. 1119(E) dated 7th December, 2016

and admitted the application.

2

2. The main grievance of the appellant is that the impugned order

has been passed in violation of the rules of natural justice without notice

to the appellant. Learned counsel for the appellant further submits

that the matter has also been settled with the respondent-'Operational

Creditor' (Sharda Rawat) and part payment of Rs.9,2 1,6 19/- (Rupees

Nine Lakhs Twenty One Thousand Six Hundred and Nineteen only) has

been made by a draft bearing No. 020489 dated 19th August, 2017

drawn on HDFC Bank, Meera Bagh, Outer Ring Road Branch, New

Delhi.

3. Shri Rakesh Mukhija, learned counsel appearing for the

respondent accepts that the impugned order was passed without notice

to the appellant-'Corporate Debtor'. From the judgement also, while we

find that the names of the advocates appearing on behalf of 'Operational

Creditor' have been recorded, no appearance has been shown on behalf

of the 'Corporate Debtor'.

4. In "Innoventive Industries Ltd. Vs. ICICI Bank & Anr."

[Company Appeal (AT) (Insolvency) Nos. 1 & 2 of 20171, the Appellate

Tribunal by judgement dated 15th May, 2017 held:

"53. In view of the discussion above, we are of

the view and hold that the Adjudicating Authority is

bound to issue a limited notice to the corporate

debtor before admitting a case for ascertainment of

existence of default based on material submitted by the corporate debtor and to find out whether the

application is complete and or there is any other

defect required to be removed. Adherence to

Principles of natural justice would not mean that in

every situation the adjudicating authority is

required to afford reasonable opportunity of

hearing to the Corporate debtor before passing its

order."

5. In the circumstances, as the case of the appellant is covered by

the decision in "Innoventive industries Ltd. Vs. ICICI Bank & Anr."

and the impugned order has been passed in violation of rules of natural

justice, we set aside the impugned order.

6. The case is remitted to the learned Adjudicating Authority,

Principal Bench, New Delhi to decide the professional fee of Interim

Resolution Professional, if appointed, and if any amount is payable, will

direct the appellant to pay the same and will close the case in view of

the settlement.

The appeal is allowed with the above observations. However, in

the facts and circumstances of the case, there shall be no order as to

costs.

[Justice S.J. Mukhopadhaya] Chairperson

[Balvinder Singh Member (Technical) I

NATIONAL COMPANY LAW APPELLATE TRIBUNAL NEW DELHI

Company Appeal (AT) (Insolvency) No. 139 of 2017

IN THE MATTER OF:

MIs. Kee Projects Ltd. ... Appellant

Versus

Sharda Rawat ... Respondent

Present: For Appellant : Dr. Anurag Kumar Agarwal and Shri Umesh Mishra, Advocates

For Respondent: Shri Rakesh Mukhija, Advocate

ORDER

01.09.2017 The appellant has preferred this appeal against

judgement dated 6th July, 2017 passed by the Learned Adjudicating

Authority (National Company Law Tribunal), Principal Bench, New Delhi

(hereinafter referred to as 'Adjudicating Authority') in CO.PET.

No.662/2016. By the impugned order, learned Adjudicating Authority,

on a transfer petition of winding-up under Section 439 read with Section

443 read with Section 433(e) read with Section 434 of the Companies

Act, 1956, treated the application preferred by the respondent as an

application under Section 9 of the Insolvency and Bankruptcy Code,

2016 (hereinafter referred to as '1&B Code') pursuant to the Central

Government Notification No. G.S.R. 1119(E) dated 7th December, 2016

and admitted the application.

2. The main grievance of the appellant is that the impugned order

has been passed in violation of the rules of natural justice without notice

to the appellant. Learned counsel for the appellant further submits

that the matter has also been settled with the respondent-'Operational

Creditor' (Sharda Rawat) and part payment of Rs.9,21,619/- (Rupees

Nine Lakhs Twenty One Thousand Six Hundred and Nineteen only) has

been made by a drft bearing No. 020489 dated 19th August, 2017

drawn on HDFC Bank, Meera Bagh, Outer Ring Road Branch, New

Delhi.

3. Shri Rakesh Mukhija, learned counsel appearing for the

respondent accepts that the impugned order was passed without notice

to the appellant-'Corporate Debtor'. From the judgement also, while we

find that the names of the advocates appearing on behalf of 'Operational

Creditor' have been recorded, no appearance has been shown on behalf

of the 'Corporate Debtor'.

4. In "Innoventive Industries Ltd. Vs. ICICI Bank & Anr."-

[Company Appeal (AT) (Insolvency) Nos. 1 & 2 of 2017], the Appellate

Tribunal by judgement dated 15th May, 2017 held:

or"53. In view of the discussion above, we are of

the view and hold that the Adjudicating Authority is

bound to issue a limited notice to the corporate

debtor before admitting a case for ascertainment of

existence of default based on material submitted by 3

the corporate debtor and to find out whether the

application is complete and or there is any other

defect required to be removed. Adherence to

Principles of natural justice would not mean that in

every situation the adjudicating authority is

required to afford reasonable opportunity of

hearing to the Corporate debtor before passing its

order."

5. In the circumstances, as the case of the appellant is covered by

the decision in "Innoventive Industries Ltd. Vs. ICICI Bank & Ann"

and the impugned order has been passed in violation of rules of natural

justice, we set aside the impugned order.

6. The case is remitted to the learned Adjudicating Authority,

Principal Bench, New Delhi to decide the professional fee of Interim

Resolution Professional, if appointed, and if any amount is payable, will

direct the appellant to pay the same and will close the case in view of

the settlement.

The appeal is allowed with the above observations. However, in

the facts and circumstances of the case, there shall be no order as to

costs.

[Justice S.J. Mukhopadhaya] Chairperson

[Balvinder Singh] Member (Technical) / ng/

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