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Nitin Ramchandra Jadhav vs Mr. Vijendra Kumar Jain

National Company Law Appellate Tribunal7 September 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

NATIONAL COMPANY LAW APPELLATE TRIBUNAL, PRINCIPAL BENCH,NEW DELHICompany Appeal (AT) (Insolvency) No. 652 of 2022

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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