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Judgment
Heard both sides.
The Appellant / Operational Creditor has focused the instant Company Appeal (AT) (CH) (INS) No. 185 of 2021, as an `Affected Person’, before this `Tribunal’, on being `dissatisfied’ with the `impugned order’ dated 30.04.2021 in IBA/1297/2019, passed by the `Adjudicating Authority’, (`National Company Law Tribunal’, Division Bench – II, Chennai).
The `Adjudicating Authority’, (`National Company Law Tribunal’, Division Bench – II, Chennai), while passing the `impugned order’ dated 30.04.2021 in IBA/1297/2019, at paragraph 6, had observed the following:
6.``On perusal of documents, it is clear that various meetings between both parties were held, to arrive at amicable settlement. Since, the respondent has not filed reply, the responsibility of the applicant to prove `debt’ and `default’ is very high. The onus is on the Applicant to satisfy that there is no ``pre-existing dispute’’ between the both. From the documents, it is clear that there were lot of discussions and meetings between both. The outcome of the same is not before this `Adjudicating Authority’’. Since the IBC is rigorous statue, abundant caution ought to be exercised, before passing order. However, the rights of the Applicant for recovery of his dues, if any, intact.’’ and `dismissed’ the `Application’, without costs.
Assailing the `Correctness’, the `Validity’, `Propriety’ and `Legality’ of the `impugned order’ dated 30.04.2021 in IBA/1297/2019, passed by the `Adjudicating Authority’, (`National Company Law Tribunal’, Division Bench –II, Chennai Bench), the Learned Counsel for the `Appellant / Operational Creditor’ submits that the `impugned order’, passed by the `Adjudicating Authority’, is `per se’, wrong in the `eye of Law’.
According to the Learned Counsel for the Appellant, the Respondent, before the `Adjudicating Authority’, had filed its `Counter’ / `Reply’ / `Response’ to the main Petition IBA/1297/2019 and in fact, at the time of hearing the arguments, the Learned Counsel for the Respondent was heard by the `Tribunal’, on 11.03.2021 and as such, it cannot be said by any such imagination that the Respondent had not filed its `Counter’ / `Reply’ / `Response’, when the record of the instant case exhibits otherwise. In this regard, the `Adjudicating Authority’, (`National Company Law Tribunal’, Division Bench – II, Chennai), had failed to take note of the factum of filing of the `Counter’ / `Reply’ / `Response’, of the Respondent and hence there has occasioned a serious miscarriage of justice, which needs to be rectified by this `Appellate Tribunal’.
At this juncture, this `Tribunal’, on going through the `impugned order’ dated 30.04.2021 in IBA/1297/2019, passed by the `Adjudicating Authority’ (`National Company Law Tribunal’, Division Bench – II, Chennai) at Paragraph 6, is of the considered view that the `Adjudicating Authority’, had observed incorrectly as that the Respondent had not filed its `Reply’ and this erroneous observation, is opposed to the `available materials on record’.
As a matter of fact, the factum of filing of `Reply’ of the Respondent before the `Adjudicating Authority’, is not disputed by the Learned Counsel appearing for the Respondent, in the instant `Appeal’, before this `Tribunal’. In this connection, this `Tribunal’, relevantly points out that, although the Learned Counsel for the Respondent had referred to the `Minutes of Meeting’ for the `amicable solution’ dated 15.12.2018 (vide Page 46 of the `Appeal Paper Book’ – Diary No. 589 dated 25.06.2022), wherein at Serial No.6, it is mentioned that ``For Arul, a salary of 70,000 per month for 15 months from 1st Jan 2016 – March 31 2017 to the tune of 10,50,0000. Arul will give an undertaking on 20 rupees stamp paper for non-deduction of TDS purpose’’, yet, this `Tribunal’, is of the earnest opinion that the `Adjudicating Authority’ had proceeded to pass an `Order’, only on the premise that the `Respondent’ had not filed any `Reply’ to the main Petition in IBA/1297/2019.
In reality, the established fact is that, the `Respondent’ had filed a `Reply’, before the `Adjudicating Authority’, to the main Petition in IBA/1297/2019 and apart from that, the Learned Counsel was heard at the time of `Reserving the Orders’, in the main Petition.
When the fact situation is that, the `Respondent’ had filed its `Counter’ / `Reply’ / `Response’, before the `Adjudicating Authority, to the main Petition IBA/1297/2019, the Contra observation made by the `Adjudicating Authority’, Viz., that the Respondent had not filed its `Reply’ is clearly an erroneous one, and there appears to be a `Costly Lapse’ / `Omission’, on the part of the `Adjudicating Authority’ in not noticing the `filing of Counter / Reply’, in a proper and real perspective. Therefore, this `Tribunal’, without going in to the merits of the `Controversies’ / `Disputes’, between the respective `Parties’ and not delving deep in to the same, without any `Haziness’, simpliciter comes to an `inevitable’, `inescapable’ and `irresistible’ conclusion that the `Adjudicating Authority’ (`National Company Law Tribunal’, Division Bench – II, Chennai), had committed a serious `Material Irregularity’ and `Patent Illegality’ in passing the `impugned order’ and this `Appellate Tribunal’, to prevent an `Aberration of Justice’ and in furtherance of `Substantial Cause of Justice’, sets aside the `impugned order’ dated 30.04.2021 in IBA/1297/2019, passed by it. Consequently, the `Appeal’ succeeds.
In fine, the instant Comp. App (AT) (CH) (INS) No. 185 of 2021 is allowed. No costs. The matter is remitted back to the `Adjudicating Authority’ (`National Company Law Tribunal’, Division Bench – II, Chennai) to restore IBA/1297/2019, filed by the Appellant / Operational Creditor / Petitioner, to its file, within two weeks from the date of pronouncement of `Judgment’.
The `Adjudicating Authority’, after restoring IBA/1297/2019, filed by the Appellant / Operational Creditor / Petitioner to its file, is to provide adequate opportunities to both the `Parties’, to present their case before it and after adhering to the `principles of natural justice’, taking into account of the contents of the `Reply’/`Response’/`Counter’, filed by the `Respondent’, after hearing the arguments of both sides in main Petition is to pass a `Reasoned Order’ on merits, in a fair and just manner, in accordance with `Law’, of course, `Uninfluenced’ and `Untrammelled’ with any of the observations, made by this `Tribunal’, in this `Appeal’. The `Parties’ are at `Liberty’ to raise all `factual and legal pleas’ before the `Adjudicating Authority’, who shall take in to account of the same at the time of passing an `Order’ in main IBA/1297/2019.