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Vam Realcon Pvt. Ltd vs Resolution Professional For M/S Dcp ...

National Company Law Appellate Tribunal8 August 2023

Ratio decidendi

The rule this decision rests on

The principle on which the appeal succeeds is that an adjudicating authority under the Insolvency and Bankruptcy Code may not decide an application under Section 19(3) against a party without first issuing notice to that party and affording it an opportunity of hearing; a decision made without such notice, in breach of Rule 37 of the National Company Law Tribunal Rules, 2016 and the principle of audi alteram partem, is liable to be set aside.

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

1NATIONAL COMPANY LAW APPELLATE TRIBUNAL PRINCIPAL BENCH,NEW DELHIComp. App. (AT) (Ins) No. 268 of 2023 &IA No. 946 of 2023

IN THE MATTER OF: VAM Realcon Pvt. Ltd. ...Appellant

Versus

Resolution Professional for DCP India Pvt. Ltd. Mr. ...Respondents Sanju Kumar

Present: For Appellant : Mr. Arjun Singh Bawa, Mr. Arjun Narang, Siddhartha Advocates For Respondents : Mr. Vikas Ashwani, Advocates for R2

ORDER

Per- Justice Rakesh Kumar Jain (Oral)

08.08.2023 This appeal is directed against the order dated 15.12.2022

passed by the 'National Company Law Tribunal, New Delhi (hereinafter

referred as to 'the Adjudicating Authority') by which an application bearing IA

No. 6067 of 2022 filed in IB No. 205/ND/2021 under Section 19(3) of the

Insolvency and Bankruptcy Code, 2016 (hereinafter referred as to 'The Code')

by the RP has been allowed without issuance of any notice.

2. Counsel for the Appellant has submitted that the Adjudicating

Authority has committed a patent error of law for not issuing notice to the

Appellant herein before deciding the aforesaid application. In this regard, he

refers to Rule 37 of the National Company Law Tribunal Rules, 2016 which

read as under:

"37. Notice to Opposite Party.-

Comp. App. (AT) (Ins) No. 268 of 2023 & IA No. 946 of 2023 2

(1) The Tribunal shall issue notice to the respondent to show cause against the application or petition on a date of hearing to be specified in the Notice. Such notice in Form No. NCLT. 5 shall be accompanied by a copy of the application with supporting documents...."

3. It is further submitted by counsel for the Appellant that not only the

aforesaid Rules provides for a notice but also it is a settled principle of law

that nobody should be condemned without hearing.

4. Counsel for the Respondent has fairly conceded to the principle of law

that nobody should be condemned without hearing i.e. the principle of Audi

Alteram Partem has to be followed.

5. In view thereof, the appeal succeeds and impugned order dated

15.12.2022 passed in IA No. 6067 of 2022 is hereby set aside.

6. However, the matter is remanded back to the Adjudicating Authority by

restoring IA No. 6067 of 2022 with a direction to decide the said application

by passing a speaking order after issuing notice to the Appellant herein.

7. The Adjudicating Authority is directed to decide the said application,

after appearance of the parties before it and after notice given to the Appellant

herein as early as possible but preferably within a period of 15 days.

8. The parties are directed to appear before the Adjudicating Authority on

16th August, 2023.

[Justice Rakesh Kumar Jain] Member (Judicial)

[Naresh Salecha] Member (Technical) Raushan/Ravi

Comp. App. (AT) (Ins) No. 268 of 2023 & IA No. 946 of 2023

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