Yajur Commodities Ltd vs Nanda Energy Ltd

Present: For Appellant : Mr. Abhinav Anand and Mr. Anubhav Anand Aron, Advocates For Respondent : Mr. Senthil Jagadeesan and Ms. Suriti Chowdhary, Advocates

ORDER

(Through Virtual Mode)

01.09.2020 This appeal has been preferred against the order dated 3 rd

March, 2020 passed by the Adjudicating Authority (National Company Law

Tribunal), Special Bench-II, Chennai by virtue whereof application filed by the

Appellant (Operational Creditor) under Rule 48(2) and Rule 11 of NCLT Rules,

2016 for setting aside of the order dated 4th December, 2019 vide which the

Adjudicating Authority dismissed the application under Section 9 of the I&B

Code for default, and further seeking the restoration of petition has been

dismissed on the ground that the Appellant has asserted facts which are self-

contradictory and no ground is made out for restoration.

2. After hearing the learned counsel for the Appellant, we find that the

application filed by the Appellant claiming to be an 'Operational Creditor' under

Section 9 of the 'I&B Code' against the Respondent (Corporate Debtor) was

pending at pre -admission stage and since the Appellant was truant with the

Adjudicating Authority and did not appear on 20 th November, 2019, pre-emptory 2

direction seeking its appearance to argue the matter came to be passed and the

matter was adjourned to 4th December, 2019. However, the Appellant again

failed to appear on that day and the application came to be dismissed for default.

Subsequently, the application being I.A.142/IB/2020 was filed for see king

setting aside of the order of dismissal for default passed on 4 th December, 2019

with further prayer of restoration of application which came to be dismissed after

taking into consideration the contradictory stand taken in the application.

Dealing with the aforesaid Interlocutory Application, the Adjudicating Authority

has taken note of the ground pleaded for seeking setting aside of the dismissal

order which stated that Advocate V. Dinesh Raja appeared on behalf of the

Appellant on 4th December, 2019 and filed one page written submissions which

was taken on record but could not advance arguments and sought adjournment

as his Vakalatnama was not on record. This stand taken by the Appellant was

found to be in conflict with the judicial record. While referring to the minutes of

the proceedings recorded on 4th December, 2019, the Adjudicating Authority

noticed that despite pre -emptory directions given on 20th November, 2019 the

Appellant (Operational Creditor) chose to remain absent leaving the Adjudicating

Authority with no option but to dismiss the application. It is manifestly clear

that the stand taken by the Appellant (Operational Creditor) for setting aside of

the dismissal order is against the record and the Appellant was estopped from

pleading any fact against the judicial record. Estoppel by record would not

permit the Appellant to take a stand in conflict with and contradictory thereto.

Therefore, it can be safely stated that no ground, much less a cogent ground

warranting setting aside of the dismissal order, was made out by the Appellant.

Company Appeal (AT) (Insolvency) No. 730 of 2020 3

3. It is indisputable that it was the Appellant's (Operational Creditor 's) duty

to satisfy the Adjudicating Authority that the operational debt was due and

default had been committed in relation thereto by the Corporate Debtor

warranting admission of application under Section 9 of the I&B Code. What

transpires from the record is that the Appellant/Operational Creditor has played

hide and seek with the Adjudicating Authority and instead of satisfying it as

regards making out of a case for admission of application under Section 9 of the

I&B Code, it has come up with palpably false plea trying to belie the judicial

record which it was estopped from doing.

We find no merit in this appeal. The same is dismissed.

[ Justice Bansi Lal Bhat ] Acting Chairperson

[Justice Venugopal M.] Member (Judicial)

[ Shreesha Merla ] Member (Technical)

/ns/gc/

Company Appeal (AT) (Insolvency) No. 730 of 2020