Nitin Ramchandra Jadhav vs Mr. Vijendra Kumar Jain
- CitationCompany Appeal (AT) (Insolvency) No. 652 of 2022
Ratio decidendi
The rule this decision rests on
Where an adjudicating authority has proceeded ex parte and reserved and pronounced its order without considering a pending application to recall that ex parte proceeding, and where the respondent's counsel accepts that the matter should be remitted, the appellate tribunal may set aside the impugned order and remit the application to the adjudicating authority for fresh hearing, affording the party a limited opportunity to file its reply and annex supporting materials, with the adjudicating authority to decide the application in accordance with law and uninfluenced by its earlier observations, without expressing any opinion on the merits.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
IN THE MATTER OF: Nitin Ramachandra Jadhav & Ors. ...Appellants Versus Vijendra Kumar Jain ...Respondent
Present:
For Appellants: Mr. Anuj Tiwari, Ms. Tuhina Misra, Mr. Saurabh Kr. Mishra and Mr. Nikhil Anand, Advocates.
For Respondent: Ms. Udita Singh, Advocate
ORDER
07.09.2022: Heard Learned Counsel for the Appellant and Learned
Counsel appearing for the Resolution Professional.
2. This appeal has been filed against the order dated 21.04.2022 by the
Adjudicating Authority by which order IA No. 2342/2020 filed by RP u/s 43 and
66 of the Code has been allowed and direction was issued to the Appellant to
pay back Rs. 69.46 crores.
3. Learned Counsel for the Appellant submitted that Adjudicating Authority
has passed an order on 04.02.2022 proceeding ex-parte against the Appellant
Company Appeal (AT) (Insolvency) No. 652 of 2022 1 and I.A. No. 706 of 2022 was filed by the Appellant in IA No. 2342/2020 on
12.03.2022.
4. The Adjudicating Authority has heard the arguments in IA No. 2342/2020
on 04.03.2022 and reserved for order. Subsequently, the order was pronounced
on 21.04.2022.
5. Learned Counsel for the Appellant submits that his application filed on
12.03.2022 to recall the ex-parte order was not considered by the Adjudicating
Authority.
6. It is submitted in the appeal that the Learned Counsel for the Appellant
has also brought certain materials in support of his defense, which were not filed
before the Adjudicating Authority.
7. Learned Counsel for RP has very fairly submitted that in the facts of the
present case, the matter need to be sent back to the Adjudicating Authority to
hear the application afresh after giving limited opportunity to the Appellant to
file their reply.
8. Let the Appellants file the reply to the IA No. 2342/2020 within two weeks
from today. It shall be open for the Appellant to annexe all the relevant materials
and documents in support of their defense along with reply. Company Appeal (AT) (Insolvency) No. 652 of 2022 2
9. Adjudicating Authority shall thereafter proceed to consider the application
afresh and dispose of the application 2342/2020 in accordance with law without
being influenced by any observations made in the earlier order.
10. We make it clear that we are not expressing any opinion on the merits of
application 2342/2020. It is for the Adjudicating Authority to consider all the
aspects of the matter and take an appropriate decision accordingly.
11. In result, the order dated 21.04.2022 is set aside and the matter is
remitted back to the Adjudicating Authority for passing the order accordingly.
The appeal is disposed of.
[Justice Ashok Bhushan] Chairperson
[Mr. Barun Mitra] Member (Technical)
ss/nn
Company Appeal (AT) (Insolvency) No. 652 of 2022 3
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