AI Structured Summary
Not yet generated for this judgment
Judgment
ORDER
03.10.2023: Since in both the appeals similar orders passed by the Tribunal i.e. National Company Law Tribunal, Mumbai Bench III, have been assailed, with the consent of both the parties both the appeals were taken up together and are being disposed off by this common order.
It is not in dispute that in both the appeals short orders were passed by the Learned NCLT in original application i.e. CPs in which separate IAs were filed. In Company Appeal (AT) No.765/2021 order dated 09.07.2021 is under challenge. It is apt to reproduce the same hereinbelow:-
“IA 1062/2021: The above IA is filed by the Financial Creditor under Section 95 of IBC against the personal guarantor. However, on an enquiry from the Bench it came out that the Corporate Debtor for which the personal guarantee has been given is not under CIRP. In view of the above, the present IA cannot be prosecuted and therefore above IA 1062/2021 is disposed of and CP 293/2020 is also dismissed.”
Similarly in the Company Appeal (AT) No.766/2021 on the same date i.e. 09.07.2021, almost similar order was passed which is under challenge. The impugned order is reproduced hereinbelow:-
“IA 1063/2021: The above IA is filed by the Financial Creditor under Section 95 of IBC against the personal guarantor. However, on an enquiry from the Bench it came out that the Corporate Debtor for which the personal guarantee has been given is not under CIRP. In view of the above, the present IA cannot be prosecuted and therefore above IA 1063/2021 is disposed of and CP 174/2020 is also dismissed.”
It is not in dispute that in both the CPs, IAs were filed mainly with a prayer for passing order allowing the financial creditor/assignor to amend the company petition, deleting the financial creditor/assignor as the financial creditor and add the assignee as the financial creditor in the company petition. The said application was listed before the NCLT. However, the learned NCLT by the impugned order while disposing off IA application virtually dismissed the CP. The order does not indicate any plausible reason for passing final order on the CP. It is admitted that in both the CPs application for initiation for CIRP was pending and in view of some imperative reasons the IA was filed for substituting the parties. Since the impugned order indicates no plausible reason, we are of the opinion that impugned order in both the appeals may be set aside.
Accordingly the impugned order dated 09.07.2021 in both the appeals are hereby set aside and the matter is remitted back to the NCLT to pass order afresh after giving full opportunity of hearing to all the parties assigning some plausible reason. The parties would be at liberty to bring on record before the NCLT by filing necessary affidavit/application, facts in respect of subsequent development which has taken place after passing of the impugned order. It is clarified that we have not recorded any opinion on merit of the case.
With the above observations both the appeals are allowed and the matter is remitted back to NCLT.