Wellcome Steel Through Its Proprietor ... vs Kavish International Trading Private ...

Company Appeal (AT) (Insolvency) No. 1176 of 2023 & I.A. No. 4083 of 2023

IN THE MATTER OF:

Wellcome Steel Through its Sole Proprietor Abdul ...Appellant(s) Hafiz Murtaza Hussain Khan

Versus

Kavish International Trading Pvt. Ltd. ...Respondent(s)

Present: For Appellant : Mr. Tushar T., Advocate For Respondents :

ORDER

(Hybrid Mode)

19.02.2024: This is an application (I.A. No. 4083 of 2023) praying for

condonation of 83 days delay in refiling the Appeal. Cause shown sufficient.

Delay in refiling is condoned.

2. Heard Learned Counsel for the Appellant.

3. This Appeal has been filed against the Order dated 12th April, 2023

passed by the Adjudicating Authority by which Section 9 Application filed by

the Appellant has been rejected. Notices were issued in the Appeal which was

also published in the Newspaper but no one as appeared on behalf of the

Respondent.

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4. Learned Counsel for the Appellant submits that the Adjudicating

Authority has rejected the Application on the ground that Operational

Creditor has not filed the affidavit as required by Section 9(3)(b) o the Code.

5. We have considered the submission of Learned Counsel for the

Appellant and perused the record.

6. In paragraph 4.4, the Adjudicating Authority has given following reason

for rejecting the Application:

"This Bench is of the considered view that the Affidavit under Section 9(3)(b) of the Code is required to be filed and the same must be in relation to the notice of dispute with regard to receipt or non-receipt of the payments made by the Corporate Debtor. Hence, in view of the aforesaid, the Petition filed by the Operational Creditors deserves to be dismissed on the ground of non-filing of the Affidavit under Section 9(3)(b)."

7. Learned Counsel for the Appellant has referred to and relied on the

proviso to Section 9(3)(b) which requires that Appellant should be given an

opportunity to remove the defects if any in the application. It is submitted

that no opportunity was given to the Appellant to cure the defect. We are of

the view that ends of justice will be served in setting aside the Order of the

Adjudicating Authority and reviving the Section 9 Application to be heard

afresh before the Adjudicating Authority. Appellant is allowed three weeks

time to file requisite affidavit before the Adjudicating Authority and the

Company Appeal (AT) (Insolvency) No.1176/2023 3

Adjudicating Authority shall fix a date after three weeks and hear the

application in accordance with law.

Appeal is disposed of.

[Justice Ashok Bhushan] Chairperson

[Justice Yogesh Khanna] Member (Judicial)

[Barun Mitra] Member (Technical) Basant/nn

Company Appeal (AT) (Insolvency) No.1176/2023