Parikshit Madanmohan Sharma vs Ms Gopikrishnan & Ors

Parikshit Madanmohan Sharma ....Appellant

Vs.

M.S. Gopikrishnan & Ors. ....Respondents

Present: For Appellant:- Mr. Arun Kathpalia, Sr. Advocate with Mr. Viraj Praekh, Mr. Nitin Mishra, Ms. Mitali Gupta, Mr. Himanshu Vij, Advocates. For Respondent:- Mr. Vikas Mehta, Mr. Vishesh Kalra, Mr. Treenok Guha, Mr. Ayush Chaturvedi, Advocates for R- 1- 8, 10, 11, 13 to 20. Mr. Milan Negi, Mr. Nikhil Jha, Advocates for R- 21 & 22. Mr. Abhhirup Dasgupta, Mr. Ishaan Duggl, Ms. Ruchi Goyal, Advocates for Intervenor.

ORDER

(Hybrid Mode)

Per: Justice Rakesh Kumar Jain (Oral)

24.01.2024: This appeal is directed against the order dated

08.02.2023 passed by Adjudicating Authority (National Company Law

Tribunal, Mumbai Bench, Mumbai) by which an application filed under

Section 7 of the IBC, 2016 by some home buyers against the K.D. Lite

Developers Private Limited (Corporate Debtor) for the initiation of CIRP has

been admitted and Arihant Nenawati has been appointed as the IRP and

moratorium has been imposed.

2. Sr. Counsel for the Appellant has submitted that since this

application has been filed by some of the home buyers, therefore, it was

incumbent upon them to cross the threshold as provided in Section 7(1) -2-

Second proviso. It is submitted that the appellant had raised various issues

including the issue of threshold and the limitation but none of the issues

have been decided by the Tribunal and therefore, impugned order is a totally

non-speaking order. He has referred to para 2 and 3 of the impugned order

to contend that the total number of home buyers are 209 and therefore,

threshold of 10% is 21 whereas the application has been filed by home

buyers less than that. It is argued that the Tribunal had only noticed

Section 7(1) in paragraph 7 of the impugned order and a decision of this

Tribunal rendered in the case of Tiger Logistics (India) Ltd. Vs. Jaguar

Overseas Ltd. in which it has been held that threshold limit is to be seen on

the date of filing of application under Section 9 of the Code and then

appointed the resolution professional by admitting the application filed

under Section 7. It is submitted that nowhere in the impugned order, a

finding is recorded in respect of the issue as to whether the respondent had

crossed the threshold as provided Section 7(1) and that as to whether the

application filed by the applicants before the Tribunal was within limitation.

It is also submitted that the other issues which were raised have not even

been noticed in the impugned order.

3. Be that as it may, Counsel for the Respondents could not deny these

facts that there is no finding recorded by the Tribunal on these issues raised

by the Appellant.

4. On the other hand, Counsel for the Respondent nos. 1 to 20 except 9

and 12 has submitted that the contention of the appellant is incorrect

because the total number of allottees are 124.

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5. In such a circumstance, where there is a dispute on facts as to

whether the number of allottees are 209 as stated by the appellant or 124 as

stated by the Respondent nos. 1 to 20 except 9 and 12, the Tribunal should

have decided this question of fact first then the question of law but there is

no discussion in regard to this fact as to whether the contention of the

appellant is correct or not. In such circumstances, it is apparent that the

impugned order is non-speaking and against the principle of natural justice.

Therefore, the present appeal is hereby allowed. Impugned order is set aside

and the matter is remanded back by restoring CP (IB) No. 1420/MB-

IV/2020 to the Tribunal who was seized of this matter, to decide it again

after hearing all the parties by giving them opportunity of hearing and by

passing a speaking order. The parties are directed to appear before the

Tribunal on 12.02.2024 and raise all the issues. We request the Tribunal to

make all endeavours to complete the hearing and pass the speaking order

within a period of two months from the date of appearance of the parties

before the Tribunal. All the pending applications are closed. It is made clear

that all the contention has been kept open and no finding has been recorded

on the merit of this case.

[Justice Rakesh Kumar Jain] Member (Judicial)

[Mr. Naresh Salecha] Member (Technical)

R.N./R.R./