Va Realcon Private Limited vs Avail Holding Limited

IN THE MATTER OF: VA Realcon Private Limited ...Appellant Versus Avail Holding Ltd. ...Respondent Present: For Appellant: Mohd. Nazim Khan, RP in person with Shubham Agarwal, Mr. Shahbaboz Khan For Respondent: Mr. Samarth Shandilya, Advocate Mr. Kartikeya Singh, Advocate

ORDER

23.08.2023: Heard Mr. Mohd. Nazim Khan, RP in person, Ld. Counsel

appearing for the Respondent.

This appeal has been filed against the order dated 17.08.2022 by which

order the Adjudicating Authority has rejected the Section 9 application filed

by the Appellant. When the appeal was taken for consideration on 01.11.2022

the following order was passed by this Tribunal: -

"01.11.2022: Learned PCS appearing for

the Appellant submits that the

Adjudicating Authority rejected Section 9

Application without issuing notice on the

ground that the Appellant has failed to

bring the proof of sale of shares. It is

submitted that confirmation of the

accounts was already there along with Company Appeal (AT) (Insolvency) No. 1279 of 2022

1 Section 9 Application, hence, Application

was not required to be rejected. 2. Let

'Notice' be issued to the Respondent

through 'Speed Post'. Let the requisites

together with process fee be filed within

three days from today. The Appellant is

required to provide the e-mail address of

the Respondent and in that mode also, the

service can be effected. The Appellant is

also required to furnish the Mobile No. of

the Respondent to the 'Office of the

Registry'. 3. Let a Reply be filed within

three weeks. Rejoinder, if any, may be

filed within two weeks thereafter. 4. List

the Appeal on 13.12.2022."

3. In pursuance of the notices issued by this Tribunal, the Respondents

have appeared and were granted time to file reply more than once.

4. Learned Counsel for Respondent has further made a statement that

Respondents are making efforts for out of court settlement which was

recorded on 06.04.2023 to the following effect:-

"06.04.2023: Learned Counsel for the

Respondent submits that Respondent is

making effort to reach out a settlement with

Company Appeal (AT) (Insolvency) No. 1279 of 2022

2 the Appellant. Learned Counsel for the

Appellant submits that no settlement has been

arrived at so far. As prayed by Learned

Counsel for Respondent, Appeal is adjourned

for two weeks. List this Appeal on 27th April,

2023."

5. Today, when the matter was taken, counsel for the Respondent submits

that no settlement could be arrived as on date.

6. The present is a case where Adjudicating Authority has dismissed the

section 9 application without even issuing notices to the Respondent.

Learned Counsel for Respondent submits that had the notice were issued to

the Respondent they would have filed the reply and contested the application

on merit. We have noted the submission of the Appellant. There is a material

that confirmation of accounts was already there along with section 9

application, hence, the application did not deserve to be rejected on threshold.

In view of the stand taken by the Respondent that they are taking steps to

settle the matter, we are of the view that application need consideration on

merit.

7. We, thus, set aside the impugned order dated 17.08.2023 revive the

application CP(IB) No. (23)/ND/2022 to be considered afresh.

8. The Respondents are allowed three weeks' time to file the reply to the

Section 9 application.

Company Appeal (AT) (Insolvency) No. 1279 of 2022

3

9. The Adjudicating Authority shall consider the application afresh. We

however, observe, that it shall be open for the parties to enter into the

settlement and bring the settlement, if any, before the Adjudicating Authority

for passing appropriate orders. The appeal is allowed accordingly.

[Justice Ashok Bhushan] Chairperson

[Mr. Barun Mitra] Member (Technical)

ss/nn

Company Appeal (AT) (Insolvency) No. 1279 of 2022

4