Wianxx Impex Pvt. Ltd vs Srei Equipment Finance Ltd

Wianxx Impex Pvt. Ltd. ...Appellant

Versus

Srei Equipment Finance Ltd. ...Respondent

Present:

For Appellant : Mr. Muneesh Malhotra, Mr. Rajat Bhardwaj, Ms. Prerna Chaturvedi, Ms. Manpreet Bhatia, Advocates

For 1st Respondent: Mr. Arijit Mazumdar, Mr. Akshay Chandna and Mr. Shambo Nandy, Advocates

ORDER

10.08.2018 The respondent - 'Srei Equipment Finance Limited' filed an

application under Section 7 of the Insolvency and Bankruptcy Code, 2016

(hereinafter referred to as the "I&B Code') for initiation of 'Corporate Insolvency

Resolution Process' against the appellant - 'Wianxx Impex Pvt. Ltd. Notice has

been issued on the appellant whereinafter the case has not been admitted by the

impugned order dated 30th July, 2018. The Adjudicating Authority (National

Company Law Tribunal), Principal Bench passed the following order:

"In terms of order dated 11.07.2018 an

additional affidavit and the certificate

admissible under evidence was required to

be filed. Ld. Counsel for the petitioner 2

states that the same is ready and shall be

filed in the registry today itself with a copy

in advance to the counsel opposite.

List for arguments on 10.08.2018.

No objections are required to file."

2. Learned counsel appearing on behalf of the appellant submits that by the

last line of the impugned order, the Corporate Debtor has been prohibited from

filing any objection which is in violation of the principle of natural justice.

3. Mr. Arijit Mazumdar, learned counsel appearing on behalf of the

respondent submitted that an affidavit of compliance was asked by the

respondent herein to bring on record certain evidence. For the said reason, it

was ordered no objections is required to be filed.

4. While we accept that the appellant cannot raise any objection with regard

to the evidence if filed by the respondent (Financial Creditor), but we are of the

opinion that before giving hearing to the appellant (Corporate Debtor),

Adjudicating Authority should have given an opportunity to file a reply in view

of the decision of the Hon'ble Supreme Court in "Innoventive Industries Ltd. Vs.

ICICI Bank and Ors., - (2018) 1 SCC 407". In the said judgment, Hon'ble

Supreme Court in paragraph 28 etc., has allowed to the 'Corporate Debtor' to

raise the objection.

5. The Adjudicating Authority having failed to notice the aforesaid provision,

we set aside the impugned order. If any reply is filed by the appellant within ten

days, the Adjudicating Authority will take into consideration the same before

passing order of admission or rejection of the application under Section 7 of the

Company Appeal (AT) (Insolvency) No. 446 of 2018 3

I&B Code. As we have granted ten days' time to the appellant to file reply, we

may also grant one week's time to the respondent (Financial Creditor) to file

rejoinder.

6. The appeal stands disposed of with the aforesaid observations.

[Justice S.J. Mukhopadhaya] Chairperson

[ Justice Bansi Lal Bhat ] Member (Judicial)

/ns/gc/

Company Appeal (AT) (Insolvency) No. 446 of 2018