Vam Realcon Pvt. Ltd vs Resolution Professional For M/S Dcp ...
- CitationComp. App. (AT) (Ins) No. 268 of 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
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
This page reproduces a public judgment and a summary of it. It is research material, not legal advice, and it is no substitute for advice from an advocate on your own facts.
Research this judgment with Miss Lucy
Ask what it holds, what has followed it, and what it means for your matter — in plain English, with the citations.
Try Miss Lucy free