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V-Con Integrated Solutions ... vs Gnec Media Private Limited

National Company Law Appellate Tribunal19 March 2024Ashok Bhushan

Ratio decidendi

The rule this decision rests on

In an appeal against an order dismissing an operational creditor's Section 9 application for non-prosecution, where the creditor's counsel was present and sought adjournment, but the respondent did not appear despite service, the Appellate Tribunal held that the dismissal should be set aside and the application revived, because the operational creditor ought to have been given one more opportunity to address the merits before the Adjudicating Authority.

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. 505 of 2024

IN THE MATTER OF: V-Con Integrated Solutions Pvt. Ltd. ...Appellant

Versus

GNEC Meida Pvt. Ltd. ...Respondent

Present: For Appellant : Ms. Kritika Nagpal, Advocate

For Respondent :

ORDER

(Hybrid Mode)

19.03.2024: Heard learned Counsel for the Appellant.

2. This appeal has been filed against an order dated 17.01.2024 by which

Adjudicating Authority has dismissed the application for non-prosecution.

Appellant is the Operational Creditor who had filed the application and on

21.12.2023 following order was passed:

"ORDER Ms. Kritika Nagpal, Ld. Counsel for the Petitioner/Operational Creditor appears through VC and states that the proof of service has been filed.

None appears on behalf of the Respondent. Await appearance of Respondent. In the interest of justice, list the matter on 16.01.2024."

The matter was listed on 16.01.2024 on which date it was re-notified on

17.01.2024.

3. Adjudicating Authority in paragraph-5 of the impugned order has stated

that despite service of notice, none appears on behalf of the Respondent.

4. Appellant's submission that on the date, Counsel appeared on behalf of

Appellant and prayed for adjournment since the Counsel who had to argue the

matter was not present which was communicated to the Court but the

Adjudicating Authority proceeded to dismiss the application for non-

prosecution.

5. From the sequence of the events and earlier order passed on 21.12.2023,

it is clear that date was fixed for appearance of the Corporate Debtor who did

not appear on the said date which has been noticed in paragraph-5 of the

impugned order.

6. In the facts and circumstances, we are of the view that one more

opportunity ought to have been given to the Operational Creditor to address

submission of merits. We are thus satisfied that the order dated 17.01.2024

need to be set aside and Section 9 application be revived before the

Adjudicating Authority. We have not issued the notice to the Respondent since

no one was present when the order was passed on 17.01.2024 dismissing the

application for non-prosecution.

Appeal is disposed of accordingly.

[Justice Ashok Bhushan] Chairperson

[Mr. Barun Mitra] Member (Technical)

(Mr. Arun Baroka) Member(Technical) akc/Mn Company Appeal(AT)(Insolvency) No. 505 of 2024 Page 2 of 2

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