Ss Group Private Limited vs Shiva Asphaltic Products Private ...
- CitationCompany Appeal (AT) (Ins.) No. 669 of 2022
Ratio decidendi
The rule this decision rests on
Where the Adjudicating Authority rejects a Section 9 application on the threshold ground, and the material on record shows the application was filed before the date from which the enhanced threshold took effect (24.03.2020), the question whether the threshold is met must be assessed by reference to the filing date established by that record, namely the online filing on 17.03.2020 and the physical filing on 19.03.2020; a finding that the application was filed later, on 23.09.2021, cannot stand where the record shows otherwise, and the impugned order is set aside and the application revived for fresh consideration on merits.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
Company Appeal (AT) (Ins.) No. 669 of 2022 IN THE MATTER OF: SS Group Pvt. Ltd. ....Appellant
Vs.
Shiva Asphaltic Products Pvt. Ltd. ....Respondent
Present: For Appellant: Mr. Gulshan Kr. Sachdev, Advocate For Respondent: None
ORDER
05.09.2022: Heard Learned Counsel for the Appellant. No one is present
for the Respondent. Although, time was allowed to Respondents to file a Reply
but no reply has been filed.
2. This Appeal has been filed against the order dated 03.01.2022 by which
Adjudicating Authority (National Company Law Tribunal, New Delhi, Bench V)
has rejected the Section 9 application on the ground that it does not fulfil the
threshold for Rs. One Crore.
3. In paragraph 7 of the order, the Adjudicating Authority has observed that
application has been filed on 23.09.2021 for an amount of Rs. 88,15,207/-
after the notification dated 24.03.2020.
4. While entertaining this appeal, this Appellate Tribunal on 05.07.2022 noticed the submission of the Appellant, which is to the following effect:-
Contd.../-
2 "Learned Counsel for the Appellant submits that the Application was filed on 17th March, 2020 i.e. much before the Notification dated 24th March, 2020 enhancing the threshold from One Lakh to One Crore. Learned Counsel for the Appellant submits that the Adjudicating Authority rejected the Application holding that the Application has been filed only on 23rd September, 2021 which is not correct.
Issue Notice to the Respondent through Speed Post as well as Email. Requisites along with process fee, if not filed, be filed within two days.
Respondent to file Reply-Affidavit within two weeks. Rejoinder, if any, may be filed before the date fixed.
List this Appeal on 27th July, 2022."
5. Learned Counsel for the Appellant has referred to Page 58 of the Appeal.
Page 58 which contain seal of the National Company Law Tribunal indicating
that company petition was filed on 19.03.2020 physically. Page 59 of the
appeal indicates that on 17.03.2020 it was filed online. There being sufficient
material on the record to prove that petition was filed prior to 24.03.2020, we
set aside the impugned order passed by the Adjudicating Authority and revive
the application under Section 9 before the Adjudicating Authority to consider
the said application afresh and pass appropriate orders after hearing the
parties.
6. The Appeal is allowed accordingly.
[Justice Ashok Bhushan] Chairperson
[Barun Mitra] Member (Technical) sa/nn
Company Appeal (AT) (Ins.) No. 669 of 2022
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