Nilkamal Limited vs Wholly Joy Products Pvt

Company Appeal (AT) (Ins.) No. 781 of 2020 IN THE MATTER OF: Nilkamal Ltd. ....Appellant

Vs.

Wholly Joy Products Pvt. Ltd. ....Respondent Present: For Appellant: Mr. Pankaj Bhagat, Advocate. For Respondent: Mr. Nitesh Jain, Advocate.

ORDER

(Virtual Mode)

24.05.2022: This Appeal is directed against the order dated 24.02.2020

passed by the National Company Law Tribunal, New Delhi, Bench-II in IB-

1423/ND/2018.

Counsel for the Appellant has submitted that at one point of time the

arguments were heard, order was reserved on 07.02.2019 and pronouncement

of the order was fixed on 28.02.2019.

Counsel for the Appellant has submitted that at the time of

pronouncement of the order, he made a request to the Tribunal to allow him to

file some more material besides the application bearing CA No. 299 of 2019

filed by him on 11.02.2019, the Tribunal did not pronounce the order on

Company Appeal (AT) (Ins.) No. 781 of 2020 1 28.02.2019 and allowed the Appellant to file additional affidavit and

documents.

The Respondent filed reply to the CA no. 299 of 2019 dated 11.02.2019

on 08.03.2019 along with documents. An affidavit was also filed at the instance

of the respondent on 08.03.2019 whereas the Appellant filed an Affidavit dated

28.03.2019 along with documents.

It is further submitted that after the Tribunal heard the arguments again

and reserved the order on 03.05.2019 which was ultimately pronounced on

24.02.2020. The grievance of the Appellant is that the Tribunal did not take

into consideration the application bearing CA no. 299 of 2019, reply to the

application filed on 08.03.2019 with documents, affidavit dated 28.03.2019

filed along with documents and pronounced the same order which was drafted

at the time of pronouncement on 28.02.2019 by scoring off the said date and

putting 24.02.2020 as the date of pronouncement of order.

It is submitted that the impugned order has been passed without

application of mind and without considering fresh material i.e. application CA

No. 299 of 2019, its reply, affidavit dated 08.03.2019 and the affidavit dated

28.03.2019 filed along with documents.

On the other hand, counsel for the respondent has submitted that

though there is no reference of the aforesaid documents in impugned order

Company Appeal (AT) (Ins.) No. 781 of 2020 2 passed by the Tribunal but the Tribunal had actually applied its mind to the

said material which was allowed to be brought on record after 28.02.2019 and

has passed the impugned order which does not call for any interference.

We have heard Learned Counsel for the parties and perused the record

with their able assistance. It may be observed at the outset that we are not

touching the merits of this case and have only considered the grievance of the

appellant to the extent that the Tribunal has not given any reasons in the

impugned order as to how and why the documents /materials taken on record

after 28.02.2019 were not found worth consideration and if these

documents/materials were considered then how the same were irrelevant for

the purpose of coming to the same conclusion of maintaining the order of

dismissal of the application filed under Section 9 of the Insolvency and

Bankruptcy Code, 2016 (IBC) by the Appellant.

Since the reasons in the impugned order in this regard are conspicuous

by its absence, therefore, we are of the considered opinion that the impugned

order deserves to be set aside for the purpose of remanding it back to the

'Tribunal' to record reasons in regard to the additional material permitted to be

taken on record after 28.02.2019.

Company Appeal (AT) (Ins.) No. 781 of 2020 3 Hence, the present appeal is allowed. The impugned order is set aside.

The matter is remanded back to the Tribunal for decision afresh on the basis of

the material already available on record. No costs.

Parties are directed to appear before the 'Tribunal' on 6th July, 2022.

[Justice Rakesh Kumar Jain] Member (Judicial)

[Dr. Alok Srivastava] Member (Technical)

sa/rr

Company Appeal (AT) (Ins.) No. 781 of 2020 4