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Judgment
O R D E R
05.07.2024: This appeal is directed against the order dated 17.07.2023 passed by the Adjudicating Authority (National Company Law Tribunal, Kolkata Bench) by which an application filed by the appellant under Section 9 of Insolvency & Bankruptcy Code, 2016 (in short ‘Code’) for the resolution of their debt has been dismissed on the ground that there is a pre-existing dispute and therefore the application was not maintainable.
During the course of hearing, counsel for the appellant has vehemently argued that the Ld. Tribunal has erred in not taking into consideration the case set up by the appellant regarding successful completion and commissioning of the project. In this regard, he has referred to the completion certificate dated 05.08.2019 attached as Annexure-A-9 as well as the email dated 12.08.2019 attached as Annexure-A-10. It is submitted that had these two documents been taken into consideration while recording its finding in paragraph 25 & 26 of the impugned order than perhaps the decision would have been different altogether.
Counsel for the respondent has vehemently argued that the Tribunal has taken into consideration all the facts and circumstances and dismissed the application only because of the reason that there was a pre-existing dispute before the issuance of the demand notice, therefore, there is no error in the impugned order for which the appeal may be allowed.
We have heard counsel for the parties and after examining the record are of the considered opinion that the Ld. Tribunal has only recorded its finding in paragraph 25 & 26 of the impugned order taking into consideration the email sent by the respondent about the deficiencies in the services rendered which tantamount to pre-existing dispute and not the case set up by the appellant in regard to the completion of the project and also its commissioning.
Thus, in view of thereof, the Judgment/Order delivered by the Ld. Tribunal is totally non-speaking and therefore, the same is hereby set aside.
Since we are not making any observations on the merit of the case, therefore, the matter is remanded back to the Ld. Tribunal by restoring C.P. (IB) No. 05/KB/2021 to re-decide it after taking into consideration all the documents placed on record by both sides and shall pass a speaking order.
The parties are directed to appear before the Tribunal on 22.07.2024.