Shree Ganapati Powers & Transformers vs Vijeta Projects & Infrastructures Ltd

Comp. App. (AT) (Ins) No. 811 of 2022 IN THE MATTER OF: Shree Ganapati Power and Transformers. ...Appellant

Versus

Vijeta Projects and Infrastructure Ltd. & Ors. ...Respondent

Present: For Appellants : Mr. Anirban Ray, Sr. Adv. with Ratul Das, Dilawar Khan, Sagnik Basu, Jatin Sapra, Sunil Kumar, Shivani Sharma, Prena Sehrawat, Jai Gaba, Harsh Rajput, Adv.

For Respondent : Mr. Arijit Mazumdar, Shambo Nandy, Akanksha Kaushik, Anoushka Dey, Adv. for R1 Mr. Abhirup Das Gupta, Adv. for R2

ORDER

(Hybrid Mode)

Per: Justice Rakesh Kumar Jain (Oral)

26.03.2025 This appeal is filed by the Operational Creditor whose

application filed under Section 9 of the Code before the Tribunal has been

dismissed by the impugned order dated 27.04.2022.

2. At the outset, Counsel for the Appellant has submitted that the

impugned order has been passed by the Tribunal without giving any reason,

therefore, it suffers from vice of non-application of mind as well as the order

is totally non-speaking. In this regard, he has read over the entire impugned

order in which we have found that the Tribunal has only recorded the

submissions made by both the parties and ultimately in para 34 of the order,

the Tribunal has observed that there was a pre-existing dispute between the

parties, therefore, the application filed by the Appellant was not maintainable.

3. Counsel for the Appellant has submitted that for the purpose of

observing that there was a pre-existing dispute between the parties, a finding

has to be returned by the Tribunal as to how it has reached to the conclusion

that there was a pre-existing dispute. Since, the said finding is conspicuous

by its absence, therefore, it is submitted that the impugned order is totally

non-speaking and violates the principles of natural justice.

4. Counsel for Respondent has though argued to defend the impugned

order but he has failed to point out any finding recorded by the Tribunal on

the basis of material on record except that the court has perused the

pleadings of the parties, heard the arguments and then recorded a finding

that there was a pre-existing dispute.

5. Thus, in our considered opinion, the approach of the Tribunal is totally

unwarranted and illegal because the Tribunal is required to give reason in its

order as to why the application filed under Section 9 is dismissed precisely

on the ground of pre-existing dispute.

6. In such circumstances, we have no other alternative but to remand the

matter back to the Tribunal with a direction to decide the same again by giving

reasons much less cogent in its order either agreeing with the Appellant or

otherwise.

7. Consequently, the appeal is allowed and the impugned order is set

aside. The main petition is hereby resorted to its original number. The parties

are directed to appear before the Tribunal on 14th April, 2025.

8. The Tribunal is further directed to decide the application filed under

Section 9 of the Code as early as possible but preferably within a period of

two months from the date of appearance of the parties.

9. We make it clear here that while passing this order, we have not made

any observation on the merit of the case.

10. The parties to the lis may, if so advised, file the additional affidavit.

I.As, if any, stands closed.

[Justice Rakesh Kumar Jain] Member (Judicial)

[Mr. Naresh Salecha] Member (Technical)

SC/RR