National Company Law Appellate Tribunal
Sng Trading Company Private Limited vs Axis Trustee Services Limited on 26 July, 2022
NATIONAL COMPANY LAW APPELLATE TRIBUNAL,
PRINCIPAL BENCH, NEW DELHI
Comp. App. (AT) (Ins.) Nos. 862 & 863 of 2022
In the matter of:
Bluebird Software Pvt. Ltd. ....Appellant
Vs.
Axis Trustee Services Ltd. ...Respondent
For Appellant: Mr. Abhijeet Sinha, Mr. Kumar Anurag Sinha, Mr.
Zain Khan, Advocates.
For Respondent: Mr. Arun Kathpalia, Mr. K. Datta, Senior Advocates
with Ms. Vaishnavi Chillakuru, Mr. Madhav Khosla,
Ms. Apeksha Dhanvijay, Mr. Prateek Kumar,
Advocates.
Comp. App. (AT) (Ins.) Nos. 864 & 865 of 2022
In the matter of:
Nimitaya Infotech Pvt. Ltd. ....Appellant
Vs.
Axis Trustee Services Ltd. ...Respondent
For Appellant: Mr. Abhijeet Sinha, Mr. Kumar Anurag Sinha, Mr.
Zain Khan, Advocates.
For Respondent: Mr. Arun Kathpalia, Mr. K. Datta, Senior Advocates
with Ms. Vaishnavi Chillakuru, Mr. Madhav Khosla,
Ms. Apeksha Dhanvijay, Mr. Prateek Kumar,
Advocates.
Comp. App. (AT) (Ins.) Nos. 866 & 867 of 2022
In the matter of:
SNG Trading Company Pvt. Ltd. ....Appellant
Vs.
Axis Trustee Services Ltd. ...Respondent
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For Appellant: Mr. Abhijeet Sinha, Mr. Kumar Anurag Sinha, Mr.
Zain Khan, Advocates.
For Respondent: Mr. Arun Kathpalia, Mr. K. Datta, Senior Advocates
with Ms. Vaishnavi Chillakuru, Mr. Madhav Khosla,
Ms. Apeksha Dhanvijay, Mr. Prateek Kumar,
Advocates.
ORDER
(Through Virtual Mode) 26.07.2022: Shri Abhijeet Sinha, Learned Counsel for the Appellant prays that he may be permitted to withdraw Company Appeal (AT) (Ins.) Nos. 862 of 2022, 864 of 2022 & 866 of 2022 which have been filed against the order dated 23.03.2022. The prayer is allowed. Company Appeal (AT) (Ins.) Nos. 862 of 2022, 864 of 2022 & 866 of 2022 challenging the order dated 23.03.2022 are dismissed as withdrawn.
2. Company Appeal (AT) (Ins.) Nos. 863 of 2022, 865 of 2022 and 867 of 2022 have been filed against the order dated 05.07.2022 by which order the Adjudicating Authority directed both the parties to be in readiness to argue the matter on 26.07.2022.
3. The submission of Learned Counsel for the Appellant is that by order dated 06.06.2022, the Adjudicating Authority passed an order holding that the Application filed under Section 7 of the IBC by the Financial Creditor was defective and seven days' time have been allowed to the Financial Creditor to 3 cure the defects and after curing the defects to file Form-1. The operative portion of the order dated 06.06.2022 is as follows:-
"18. In our consider view unless this defect is cure by the applicant, we are unable to consider the other submissions of the parties. Therefore, in view of proviso of Section 7(5) clause (b), we hereby direct the Applicant to remove the defect, as referred to above and filled up the Part I of Form 1 in the manner prescribed within 7 days from the date of order."
4. Subsequent to the order dated 06.06.2022, the Financial Creditor has filed Form-1. It is submitted by Shri Arun Kathpalia and Shri K. Dutta, Learned Senior Counsel appearing for the Respondent that only mistake in the Form was that in the name of the Financial Creditor and its identification is not correctly mentioned which has now been corrected. It is submitted that there was only little error in filling of the Form which is a curable mistake which has been allowed by the Adjudicating Authority to cure.
5. Learned Counsel for the Appellant submits that when the Financial Creditor was permitted to cure the defects and Application has become in order, subsequent to order dated 06.06.2022, the Appellant who is a Corporate Debtor was entitled for an opportunity to file a Reply to the fresh Form which has been filed consequent to the order dated 06.06.2022.
6. Shri Arun Kathpalia, Learned Senior Counsel submits that the Corporate Debtor has already filed a detailed reply containing the preliminary objection also and hence, there was no necessity to grant any further opportunity to the Corporate Debtor to file a Reply. 4
7. We have considered the submissions of the Counsel for the parties and perused the record.
8. When the Adjudicating Authority found the Application defective and passed an order under proviso of Section 7(5)(b) of the IBC permitting defect to be cured, the Application became in order only subsequent to curing of the defects, in the facts of the present case, the Corporate Debtor ought to have given an opportunity to file an additional reply.
9. Counsel for the Respondent submitted that these Appeals have been filed and taken up today's date when today's date has already fixed before the Adjudicating Authority for hearing the Application, with the intend to delay the matter.
10. Looking into the facts of the present case and submissions made by the parties and to meet the ends of justice, we dispose of Company Appeal (AT) (Ins.) Nos. 863, 865 & 867 of 2022 giving liberty to the Appellant to file its additional reply within one week from today before the Adjudicating Authority. As prayed, Financial Creditor is also allowed three days' time to file a Rejoinder. Let the Adjudicating Authority fix any date after 10 days for hearing of Section 7 Application.
11. We further observe that the Adjudicating Authority shall endeavor to dispose of Section 7 Application at an early date. Both the Counsel for the parties submits that they shall cooperate with the hearing and not seek an adjournment.
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12. With these observations, Company Appeal (AT) (Ins.) Nos. 863, 865 & 867 of 2022 are disposed of.
[Justice Ashok Bhushan] Chairperson [Justice M. Satyanarayana Murthy] Member (Judicial) [Barun Mitra] Member (Technical) Anjali/nn