Manu Kesarwani vs M/S Shriji Diamonds & Anr

Manu Kesarwani ....Appellant Vs.

M/s. Shriji Diamonds & Anr. ...Respondents For Appellant: Ms. Mansi Gosain, Mr. Vineet Roy, Advocates.

For Respondents: Ms. Muskaan Garg, Mr. Himanshu Goyal, Advocates for IRP

ORDER

(Through Virtual Mode)

29.07.2022: Heard Learned Counsel for the Appellant.

2. This Appeal has been filed against the order dated 20.05.2022 passed

by the Adjudicating Authority (National Company Law Tribunal), New Delhi

Bench, Court-III, by which order the Adjudicating Authority has admitted the

Application under Section 9 filed by the Operational Creditor.

3. Learned Counsel for the Appellant submits that although the Counsel

was engaged who appeared before the Adjudicating Authority but due to his

lapse, neither written submissions could be filed nor proper pleading can be

made. He submits that due to lapse of Counsel, parties should not suffer.

4. We have heard Learned Counsel for the Appellant and perused the

record.

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5. The Adjudicating Authority in paragraph 3 of the impugned order has

made following observations:-

"3. The Corporate Debtor has been provided with several opportunities for appearance. After being satisfied that the Corporate Debtor is not interested in pursuing the present petition, this Adjudicating Authority vide order dated 10.11.2021 set Corporate Debtor ex-parte, the relevant extract of the order dated 10.11.2021 is as follows:-

"Counsel for the Operational Creditor is present. Counsel for the Corporate Debtor. During the last hearing on 06.07.2021, it was made clear that if the Corporate Debtor is not present on the next date of hearing, the matter will be decided in absence of Corporate Debtor. Accordingly, this Tribunal proceeds ex-parte as regards Corporate Debtor is concerned for all future proceedings in this matter."

6. The Operational Creditor has come up with the case that Demand Notice

was sent to the Corporate Debtor on 20.09.2019 which was not replied and

further the last payment from Corporate Debtor was received on 30.10.2018

and debt fall due on 30.10.2018. The observations made in paragraph 3 by

the Adjudicating Authority clearly indicate that the Corporate Debtor was

given several opportunities which was not availed. The proceedings were set

ex-parte against the Corporate Debtor by order dated 10.11.2021, when the

Corporate Debtor does not appear and makes his submission or plea, the

Adjudicating Authority was satisfied about the operational debt and has

Comp. App. (AT) (Ins.) No. 828 of 2022 3

admitted the Application. No plea has been raised which may result in

rejection of the Application.

7. Learned Counsel for the IRP submits that Section 19 Application has

already been filed since Suspended Directors are not co-operating. It will be

open for the IRP to press his Application pending before the Adjudicating

Authority.

8. We find that the Adjudicating Authority did not commit any error in

admitting Section 9 Application. We do not find any merit in this Appeal. The

Appeal is dismissed.

[Justice Ashok Bhushan] Chairperson

[Justice M. Satyanarayana Murthy] Member (Judicial)

[Barun Mitra] Member (Technical) Anjali/nn

Comp. App. (AT) (Ins.) No. 828 of 2022