Parag Vinimay Private Limited vs Amit Agarwal Sole Proprietor Of Adarsh ...

Company Appeal(AT) (Insolvency) No. 786 of 2022 IN THE MATTER OF: Parag Vinimay Pvt. Ltd. ...Appellant

Versus

Amit Agarwal Sole Proprietor of Adarsh ...Respondent Enterprises

With Company Appeal(AT) (Insolvency) No. 787 of 2022

IN THE MATTER OF: Parag Vinimay Pvt. Ltd. ...Appellant

Versus

Bhadrashree Steel and Power Limited ...Respondent

Present: For Appellants : Mr. Joy Saha, Sr. Advocate with Mr. Arik Banerjee, Mr. Shashwat Anand, Mr. Adya singh, Dhruva Vig, Advocates, Mr. Arun Kumar Gupta, CA. For Respondents : None

ORDER

(Through Virtual Mode)

14.07.2022 Both these Appeals have been filed against the order dated

27th April, 2022 by which Adjudicating Authority has decided the Application

filed by the Appellant and imposed a cost of Rs. 15,000/-.

2. Learned Counsel for the Appellant submits that the Appellant, who is a

Corporate Debtor, had already filed Reply and taken a plea that Application

filed under Section 9 of IBC, is barred due to Section 10-A of IBC. It is

submitted that during period of suspension, in terms of notification, no

Company Appeal(AT)(Insolvency) Nos. 786 & 787 of 2022 Page 1 of 3 Application could have been entertained. He also submits that he has already

filed an Interlocutory Application for separately deciding the issue which has

not been considered. The Adjudicating Authority has observed that since the

plea under Section 10-A IBC has already been taken by the Corporate Debtor

stating that Company Petition of Operational Creditor is not maintainable, the

plea shall be considered.

3. We have heard Mr. Joy Saha, learned Sr. Advocate, Counsel for the

Appellant. He submits that in the Reply, which has been filed by Corporate

Debtor, plea of Section 10-A of IBC has already been taken. Adjudicating

Authority has taken a view by the impugned order that the Application

separately filed raising the issue of Section 10-A IBC need not be considered

since the plea under Section 10-A IBC has already been taken in the reply filed

by the Corporate Debtor.

4. In view of the above facts, we are not inclined to entertain these Appeals.

5. We, however, observe that the Adjudicating Authority while proceeding

with Section 9 Application filed by the Operational Creditor, shall consider the

plea raised by the Corporate Debtor under Section 10-A IBC while passing

order under Section 9 Application. We are further of the view that present was

not a case of imposing a cost of Rs. 15,000/- on the Appellant. We delete the

cost of Rs. 15,000/- as imposed in the impugned order.

6. Thus, the impugned order in so far as cost amounting Rs. 15,000/-, is set

aside. The Appeals are disposed of accordingly.

Company Appeal(AT)(Insolvency) Nos. 786 & 787 of 2022 Page 2 of 3

7. Learned Counsel for the Appellant submits that although notice was

served on the Respondent but no one has appeared for the Respondent.

8. We having not entertained the Appeals, subject to the direction regarding

cost, we see no reason to issue any further notice to the Respondent.

Both the Appeals are disposed of accordingly.

(Justice Ashok Bhushan) Chairperson

(Justice M. Satyanarayana Murthy) Member(Judicial)

(Barun Mitra) Member(Technical) Akc/NN

Company Appeal(AT)(Insolvency) Nos. 786 & 787 of 2022 Page 3 of 3