Mitcon Consultancy & Engineering ... vs Al-Ameen Green Energy Pvt. Ltd

IN THE MATTER OF: Mitcon Consultancy & Engineering Services Ltd. ...Appellant Versus Al-Ameen Green Energy Pvt. Ltd. ...Respondent

Present: For Appellant : Shri Rajiv Sankar Roy, Shri Avrojyoti Chatterjee, Shri Abhijit S. Roy and Mrs. Jayashree Saha, Advocates For Respondent : None ORDER

19.12.2017 This appeal has been preferred by the appellant against the

order dated 23rd October, 2017 passed by the Adjudicating Authority (National

Company Law Tribunal), Chennai whereby and whereunder the application

preferred by the appellant under Section 9 of the Insolvency and Bankruptcy

Code, 2016 (hereinafter referred to as the 'I&B Code') read with Rule 6 of the

Insolvency and Bankruptcy (Application to Adjudication Authority) Rules, 2016

has been rejected on the ground that the claim is pre-matured.

2. Learned counsel for the appellant referred to the work order issued by the

respondent dated 18th May, 2015 at page 73 of the paper-book, particularly

paragraph 7 which is the 'Terms of payment' and submitted that the respondent

was liable to pay the dues much before the filing of the application under Section

9 of the I & B Code. Therefore, it cannot be held that the payment of debt was

not mature.

3. From the records, including the work order it appears that the date of

payment was matured and the Adjudicating authority failed to notice the same.

Company Appeal (AT) (Insolvency) No. 281 of 2017 1

4. Learned counsel for the appellant further submitted that it was brought

to notice of the Adjudicating Authority that no dispute was in existence prior to

the demand notice issued under sub-section (1) of Section 8 and a dispute was

raised for the first time by the respondent while giving reply under sub-section

(2) of Section 8.

5. In spite of notice and service of notice, the respondent did not choose to

appear nor disputed the aforesaid facts.

6. Having heard counsel for the parties and in view of observations as made

above, as we find that the Adjudicating Authority has not appreciated the facts

and failed to notice the terms and conditions of work order dated 18th May, 2015

and accepted the statement made by the respondent without any basis, we have

no other option but to the set aside the order.

7. We, accordingly, set aside the order dated 23rd October, 2017 passed by

Adjudicating Authority in CP/575/(IB)/CB/2017 and remit the case to the

Adjudicating Authority, Chennai for appropriate order. If the application is

complete and there is no defect, after notice to the respondent and hearing the

parties, it will admit the application. If there is defect, appropriate time be

granted to the appellant to remove the defects.

8. The appeal is allowed with the aforesaid observations. No costs.

[Justice S.J. Mukhopadhaya] Chairperson

[ Justice Bansi Lal Bhat ] Member (Judicial) /ns/gc

Company Appeal (AT) (Insolvency) No. 281 of 2017 2