Mr. Lucindo Domingos Antonio De Faria vs Malwan Hotels Private Limited

IN THE MATTER OF: Lucindo Domingos Antonio De Faria ...Appellant

Versus

Malwan Hotels Pvt. Ltd. ...Respondents

Present: For Appellant : Mr. Pradeep Kumar Arya, Mr. Kapil Dhaka & Ms. Namrata Malik, Advocates.

For Respondents : Mr. Swapnil Gupta, Mr. Vaibhav Mendiratta, Mr. Harshit Gupta, Mr. Sajal Jain, Mr. Anmol Sehgal & Mr. Tarun Mishra, Advocates.

ORDER

(Hybrid Mode)

[Per : Justice Rakesh Kumar Jain (Oral)]

06.02.2025 This appeal is directed against the order dated

06.12.2023 passed by National Company Law Tribunal, Mumbai Bench-IV

('Tribunal') by which an application filed under Section 7 of the Insolvency

& Bankruptcy Code, 2016 ('Code') bearing CP (IB) No. 677/MB-IV/2023 for

initiation of the CIRP against Malwan Hotels Pvt. Ltd. has been dismissed.

2. Counsel for the Appellant has submitted that the Tribunal has

committed an error in not the completing the pleading, in so far as the

Rejoinder of the Appellant is concerned, therefore, the Appellant was denied

the right to rebut the new averments made by the Respondents which were

conspicuous by its absence in the Reply dated 09.11.2022 to the demand

notice.

Page 1 of 5

Comp. App. (AT) (Ins.) No. 267 of 2024

3. It has further submitted that the when the case was listed for hearing,

the Appellant had specifically requested to the Learned Tribunal to adjourn

the case for filing the Rejoinder to the Reply because he had received the

reply from the Respondent on 06.11.2023 at 11:13 pm and there was hardly

anytime for the Appellant to prepare the Rejoinder and file the same.

4. He has also submitted that Rule 2(19) of the NCLT Rules, 2016 states

that "pleadings" means and includes applications including interlocutory

application,, petitions, appeals, revisions, replies, rejoinders, statements,

counter claims, additional statement supplementing the original application

and reply statement under these rules and as may be permitted by the

Tribunal."

5. It is submitted that on 26.09.2023, the Corporate Debtor sought time

to file Reply. The court granted two weeks time and also directed the CD to

serve a copy of the Reply to the Appellant atleast two days in advance from

the next date of hearing. The said order is reproduced as under :-

"ORDER

1. Ms. Vinita Melvin, Ld. Counsel for the Operational Creditor present. Ms. Surekha Yadav i/b Mr. Avinash R. Khanolkar, Ld. Counsel for the Corporate Debtor present.

2. Counsel for the Corporate Debtor seeks some time for filing reply. Two weeks' time granted. Counsel is directed to serve the copy of reply to the other side, at lease two days in advance.

3. Post this matter on 07.11.2023 for further consideration."

Page 2 of 5 Comp. App. (AT) (Ins.) No. 267 of 2024

6. It has also come on record and is not denied that the CD sent the

reply through e-mail on 06.11.2023 at 22:13. The said e-mail is also

reproduced as under :-

"------Forwarded message ---------

From: Adv. Avinash R. Khanolkar, avik2646@gmail.com Date: Mon, 6 Nov 2023 at 22:13

Subject: Re: Mr. Lucindo Domingos Antonio De Faria v. Malwan Hotels Pvt. Ltd., C.P (IB) 677 of 2023 To: Shreni Shetty shreni@anblegal.com Cc: Swati Chandan swati@anblegal.com ,Vinita Melvin vivita@anblegal.com ,Ashish Bhakta ashish@anblegal.com ,Antara Kalambi antara@anblegal.com Hello Adv. Shreni, In reference to trailing mail please find the herewith annexed copy of Reply to the Company Petition being filed with NCLT, Mumbai on behalf of my client M/s. Malwan Hotels Private Limited. Please revert for pertaining queries, if any. With Best Regards.

Adv. Avinash R. Khanolkar 09970229636 Office : 52, 5th Floor, J B House, Raghunath Dadaji Lane, Beside Fountain Plaza Hotel, Fort, Mumbai, Maharashtra - 400 001."

7. It is further submitted that on the adjourned dated i.e., 07.11.2023

the court reserved the order. The said order is reproduced as under :-

Page 3 of 5

Comp. App. (AT) (Ins.) No. 267 of 2024

"ORDER

1. Ms. Vinita Melvin, Ld. Counsel for the Operational Creditor present. Ms. Surekha Yadav, Ld. Counsel for the Corporate Debtor present.

2. Heard the counsel from both sides and perused the records. Reserved for orders."

8. The grievance of the Appellant at this stage is that despite his

request, the Learned Tribunal has not allowed the Appellant to file

Rejoinder and relied upon the Reply filed by Respondent which was not

filed in terms of the order passed on 26.09.2023 in which it is clearly

mention that "Counsel is directed to serve the copy of reply to the other side,

at least two days in advance". He further submits that in view of the

aforesaid order, the Learned Tribunal should not have taken the Reply of

the Respondent on record because the Respondent did not abide by the

direction contained in order dated 06.09.2023 and was not eligible to file

the reply on record.

9. Be that as it may, he has confined with the argument at this stage,

to allow him to file Rejoinder to the Reply by Respondent and for that

matter requested that the Impugned Order may be set aside and the matter

may be remanded back to the Learned Tribunal, giving him an opportunity

to file the Rejoinder to the Reply filed by the Respondent. He has also

another grievances that the written submissions filed on 09.11.2023, after

the order was reserved on 07.11.2023. has also not taken into

consideration at the time when the Impugned Order was passed. He has

requested that while remanding the matter back, the Tribunal may also be

Page 4 of 5 Comp. App. (AT) (Ins.) No. 267 of 2024

directed to consider the written submission filed by the Appellant now after

filing the Rejoinder.

10. Counsel for the Respondent has not raised any objection to the

contention made by the Appellant. In view thereof, the present appeal is

hereby allowed. Impugned Order is set aside. The CP (IB) No. 677/MB-

IV/2023 is restored to its original number and the matter is remanded back

to the Tribunal to proceed with it in accordance with law after giving an

opportunity to the Appellant to file Rejoinder to the Reply filed by the

Respondent. The Learned Tribunal is further directed that the written

submissions same shall also be considered after the Rejoinder is filed.

11. The parties are directed to appear before the Tribunal on 28.02.2025.

No costs. I.A. if any, are closed.

[Justice Rakesh Kumar Jain] Member (Judicial)

[Mr. Naresh Salecha] Member (Technical)

[Mr. Indevar Pandey] Member (Technical) Sim/RR

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