Sak Industries Pvt Ltd vs Fenance Auto Ltd

SAK Industries Pvt Ltd Appellant

Vs

Fenance Auto Ltd Respondents

Present:

For Appellant:-Mr Anuj Kumar with Mr. Anuj Verma, Advocates.

For Respondents: - None.

ORDER

15.11.2017 - This appeal has been preferred by the appellant, M/s SAK

Industries Pvt Ltd (hereinafter referred to as the "operational creditor) against

the order dated 19th July, 2017 passed by the Adjudicating Authority (National

Company Law Tribunal), New Delhi whereby and whereunder the application

preferred by appellant under Section 9 of the Insolvency and Bankruptcy Code,

2016 (hereinafter referred to as "I&B Code") has been rejected on the ground that

the defects have not been removed within 7 days which is mandatory in terms fo

the decision of the Appellate Tribunal in the case of Smart Timing Steel Ltd Vs

National Steel and Agro Industries Ltd.

Notice was issued on Respondents but inspite of service of notice it did not

choose to appear nor disputed the facts stated in the appeal.

Learned counsel for the appellant brought to the notice of this Appellate

Tribunal the decision of the Hon'ble Supreme Court in the case of M/s Surendra

Trading Company Vs M/s Juggilal Kamlapat Jute Mills Company Ltd and 2.

Others, Civil Appeal No.8400 of 2017 etc. In the said case the Hon'ble

Supreme Court by its judgement dated 19th September, 2017 has held that sub-

section (5) of Section 7 or proviso to sub-section (5) of Section 9 or proviso to

sub-section (4) of Section 10 relating to removing of defects within 7 days is not

mandatory. The judgement of the Appellate Tribunal to that extent has been set

aside.

In view of the aforesaid decision of the Hon'ble Supreme Court, we have

no other option but to set aside the impugned order dated 19th July, 2017. It is

accordingly set aside. The case is remitted back to the Adjudicating Authority,

who after notice to the parties will consider the case. If there is any defect, the

appellant be allowed time to remove the defects. The appeal is allowed with the

aforesaid observations. However, in the facts and circumstances there shall be

no order as to cost.

(Justice S.J. Mukhopadhaya) Chairperson

(Justice Bansi Lal Bhat) Member (Judicial)

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