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Rkd Construction Private Limited vs Sadbhav Engineering Limited

National Company Law Appellate Tribunal20 March 2024Ashok Bhushan

Ratio decidendi

The rule this decision rests on

The Adjudicating Authority's rejection of an application under Section 9 of the Insolvency and Bankruptcy Code solely for non-filing of the affidavit required by Section 9(3)(b) is an order that may be set aside where the applicant has sworn the affidavit within the time granted but it was not placed before the Authority due to a communication failure, and where the affidavit contains defects, the applicant is entitled to a further opportunity to file a compliant affidavit within a fixed period, with the Adjudicating Authority then to proceed in accordance with law.

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

NATIONAL COMPANY LAW APPELLATE TRIBUNALPRINCIPAL BENCH, NEW DELHICompany Appeal (AT) (Insolvency) No. 527 of 2024IN THE MATTER OF:

RKD Construction Pvt. Ltd. ...Appellant

Versus

Sadbhav Engineering Ltd. ...Respondent

Present: For Appellant : Ms. Kiran Suri, Sr. Advocate with Mr. Sidhant Dwibedi and Mr. Manoj Kumar, Advocates

For Respondent : Mr. Naveen Pahwa, Sr. Advocate with Mr. Siddharth Garg, Mr. Sirjan Sinha, Mr. Himanshu Chaubey, Mr. Shubham Solanki and Mr. Atul Sharma, Advocates

ORDER

(Hybrid Mode)

20.03.2024 Heard Learned Counsel for the Appellant and Learned

Senior Counsel Mr. Naveen Pahwa appearing on behalf of the Respondent.

This Appeal has been filed against the order dated 07.11.2023, by

which order Adjudicating Authority has rejected the Application on the

ground that there is non-compliance of Section 9(3)(b).

Learned Counsel for the Appellant submits that order was passed on

13.10.2023 granting time to the Appellant to file an affidavit under Section

9(3)(b) within three weeks. It is submitted that within three weeks' affidavit

was sworn on 30.10.2023 and it was sent to the Counsel. However, there was

delay due to some issues pertaining to communication issue, the affidavit

could not be placed on the date when case was called on 07.11.2023.

Mr. Pahwa, learned Sr. Counsel appearing on behalf of Respondent

pointed out that even the affidavit which appears to have been sworn on 30.10.2023, the affidavit is not complete as per Section 9(3)(b). He has

referred to para 2 of the affidavit, which is not in compliance of Section 9(3)(b).

The application has been rejected only on the ground of defect of not filing

affidavit under Section 9(3)(b). From the material on the record, it does appear

that affidavit was sworn under the heading 'affidavit of no dispute' and was

forwarded but could not be placed due to some communication issue.

It is further submitted that some errors have also crept up in paragraph

2 of the affidavit. In facts and circumstances of the case, we are of the view

that ends of justice is served in giving one more opportunity to the Appellant

to file an affidavit as required under Section 9(3)(b), which should be done

within two weeks from today.

The order dated 07.11.2023 is set aside. In the event affidavit is filed

within two weeks, Adjudicating Authority shall proceed in accordance with

law.

Appeal disposed of.

[Justice Ashok Bhushan] Chairperson

[Mr. Barun Mitra] Member (Technical)

[Mr. Arun Baroka] Member (Technical) pks/nn

Company Appeal (AT) (Insolvency) No. 527 of 2024 2 of 2

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