Shekhar Sarawagi vs Ghanaram Infraengineers Private ...

IN THE MATTER OF: Shekhar Sarawagi ....Appellant Sole Proprietor of M/s Ado Conmat India

Vs.

Ghanaram Infraengineers Pvt. Ltd. ....Respondent

Present: For Appellant: Ms. Vishakha Gupta, Advocate For Respondent: Mr. Ashish Garg, Advocate

ORDER

26.09.2022: Heard counsel for the parties. This appeal has been filed

against the order of the Adjudicating Authority (National Company Law

Tribunal, New Delhi Bench -V) dated 11.05.2022 by which order Adjudicating

Authority has dismissed Section 9 application filed by the Appellant on the

ground of limitation.

2. Brief facts necessary to be noticed are: there was Contact Agreement for

supply and transport of materials between the parties on 08.12.2011.

3. The appellant claim is that it supplied equipment and installed, the

payments were not made notice under Section 8, was issued on 27.12.2021

making claim of Rs. 8.57 crores. Application was filed under Section 9 on

23.02.2022 which application has been rejected by the impugned order.

Company Appeal (AT) (Ins.) No. 911 of 2022 2

4. The counsel for the appellant submits that part-IV of the application

itself has noticed that the last payment was made by the Corporate Debtor on

07.06.2017 and further the last invoice which was attached along with Section

9 petition was dated 24.06.2017.

5. It is submitted that Adjudicating Authority committed error in noticing

the last invoice as 18.04.2016 and further Adjudicating Authority has not

referred to the order passed by the Hon'ble Supreme court in suo moto writ

petition no. 3 of 2020 where Hon'ble Supreme Court has granted extension of

limitation period with effect from 15.03.2020 and appellant was fully covered

by the said order passed by the Hon'ble Supreme Court.

6. Counsel for the respondent submits that the application under Section 9

was rejected without issuing notice to the respondent and respondent case

could not be brought on the record. He further submits that if opportunity is

given to the respondent, it shall file its detailed reply before Adjudicating

Authority.

7. We have considered the submissions of counsel for the parties and

perused the record.

8. Adjudicating Authority itself in its order has quoted part-IV of the

application which itself noticed that last payment made by the Corporate

Debtor was on 07.06.2017.

9. The order does not notice the order of the Hon'ble Supreme Court passed

in suo moto writ petition no. 3 of 2020.

Company Appeal (AT) (Ins.) No. 911 of 2022 3

10. Further it appears that last invoice is not 18.04.2016 but 24.06.2017

which is at page 256 of the paper book which was part of Section 9 application.

11. We thus are of the view that reasons given by the Adjudicating Authority

for rejecting the application Section 9 as barred by time are not sustainable.

We set aside the order dated 11.05.2022 and revive the application under

Section 9 before the Adjudicating Authority.

12. Let the Respondent file the reply within three weeks from today.

Replication if any by the Appellant may also be filed within two weeks

thereafter.

13. The Section 9 application may be listed before the Adjudicating Authority

after six weeks from today.

14. We make it clear that we are not expressing any opinion on merits of the

case and all contentions of the parties are left open to be decided by the

Adjudicating Authority.

15. The appeal is allowed accordingly.

[Justice Ashok Bhushan] Chairperson

[Barun Mitra] Member (Technical)

sa/nn

Company Appeal (AT) (Ins.) No. 911 of 2022