Mukesh Garg vs State Bank Of India
- CitationCompany Appeal (AT) (Insolvency) No. 227/2023
Ratio decidendi
The rule this decision rests on
The order contains no reasoning on the merits of the points raised; it disposes of the appeal by directing that the Adjudicating Authority consider the appellant's objections (non-service of the Section 95(4) demand notice and limitation) when deciding under Section 99, and that its observations in the impugned order do not bind that consideration. The only proposition that can be read from the text is procedural: an appellate direction that the Adjudicating Authority must independently consider the objections at the admission stage under Section 99, unaffected by its earlier observations on the same matters.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
IN THE MATTER OF: Mukesh Garg ...Appellant
Versus State Bank of India ...Respondents Present: For Appellant: Mr. Abhishek Puri, Ms. Surbhi Gupta, Mr. Sahil Grewal, Advocates For Respondent: Mr. Kara A Gandhi, Mr. Vivek Parti(RP), Mr. Shiva Singh Chauhan, Advocates
ORDER
24.02.2023: Heard Learned Counsel for the Appellant as well as Learned
Counsel for the Bank.
2. This Appeal has been filed against the Order dated 16th December, 2022
passed by the Adjudicating Authority on an Application under Section 95(1) of
the I&B Code, 2016 filed by the Bank Respondent No. 1 against the Personal
Guarantor-Appellant.
3. Learned Counsel for the appellant submits that there was no compliance
of Section 95(4) of the Code since Demand Notice was never served. It is further
submitted that application filed by the Corporate Debtor was barred by time and
these two issues were required to be considered and decided by the Adjudicating 2
Authority and the observations made regarding the service of the demand notice
have been made without referring to relevant materials on record.
4. Learned Counsel for the Respondent submits that the Appellant was
granted time to file a Reply which Reply has not been filed by them and they
have filed an Appeal.
5. We have considered the submissions of Learned Counsel for the parties
and have perused the record.
6. It goes without saying that submissions which are being raised by the
Appellant if they are found to be true the application deserves to be rejected
however such consideration is under Section 99 when the Adjudicating Authority
is to consider to admit or reject the Application. We make it clear that the
adjudicating authority while considering the Application under Section 99 shall
consider the issues which are sought to be raised by the Appellant and no
observation made in the impugned order shall come in the way of such
consideration by the Adjudicating Authority. It also goes without saying that
other issues raised by the parties shall be considered by the Adjudicating
Authority while passing the order.
The Appeal is disposed of, accordingly.
[Justice Ashok Bhushan] Chairperson
[Barun Mitra] Member (Technical) Basant/nn
Company Appeal (AT) Ins. No. 114 of 2023
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