Metro Cash And Carry India Pvt. Ltd vs Nwcc Supply Chain Solutions Pvt. Ltd

Metro Cash & Carry India Pvt. Ltd. ...Appellant

Versus

NWCC Supply Chain Services Pvt. Ltd. ...Respondent

Present: For Appellant: Mr. Jayant Mehta, Sr. Advocate with Mr. Sayobani Basu, Ms. Natasha Rao and Ms. Roopali Singh, Advocates. For Respondent: Mr. Gagan Chhabra, Advocate.

ORDER

(Virtual Mode)

07.02.2022: Application of condonation of delay has been filed. Delay of 14 days in filing the appeal is condoned.

2. Heard learned counsel for the Appellant as well as learned counsel for the Respondent. This Appeal has been filed by the Appellant against the order passed by the Adjudicating Authority (National Company Law Tribunal), Bengaluru Bench dated 24.01.2020 insofar as observations in Paras 9 and 11 have been made against the Appellant.

3. An application was filed under Section 9 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as 'Code') by the Respondent for initiating CIRP proceedings against the present Appellant which application has although neither has been admitted nor rejected but disposed of with certain directions.

4. Learned counsel for the Appellant submits that the Adjudicating Authority has noted submissions of the Appellant that he disputed the claim of the Operational Creditor and he does not have any liability to pay. Further it was claimed that application was barred by time and there was pre-existing dispute but inspite of that the Adjudicating Authority disposed of the

Cont'd.../ -2-

Application with certain directions without admitting the Application or without rejecting the application.

5. Learned counsel for the Respondent submits that the order was a consent order and after the order, the Respondent has acted upon the order. Hence, no interference is called for.

6. After having heard learned counsel for the parties and perusing the record, we are satisfied that Adjudicating Authority adopted a procedure which is not in consonance with Section 9 of the Code. When application under Section 9 was filed, the Adjudicating Authority was required to either admit the application after hearing the parties or reject the application. However, since in the present Appeal limited prayer has been made by the Appellant for setting aside the observations made in Paras 9 and 11 of the impugned order, we allow the Appeal and set aside the observations made against the Appellant in Paras 9 and 11 of the order dated 24.01.2020. We are of the view that any observations made in the order would not be read as against the Appellant in any manner. With these observations Appeal is allowed.

[Justice Ashok Bhushan] Chairperson

[Dr. Ashok Kumar Mishra] Member (Technical)

[Dr. Alok Srivastava] Member (Technical) Archana/nn

Company Appeal (AT) (Insolvency) No. 543 of 2020