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Judgment
O R D E R
(Per: Justice Rakesh Kumar Jain:)
28.09.2022: This appeal is directed against the order dated 18.04.2022 passed by the Adjudicating Authority (National Company Law Tribunal, New Delhi Bench, Court No. II) by which an application bearing I.A. No. 1688 of 2022 filed by the Appellant under Section 60(5) read with Rule 49 of Insolvency and Bankruptcy Code, 2016 (in short ‘Code’) read with Regulation 11 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulation, 2016 (in short ‘Regulations’) has been dismissed only on the ground that an application filed under Section 49 of the Code is not maintainable.
At the outset, Counsel for the Appellant has submitted that there is an error on the part of the Adjudicating Authority in not appreciating the facts on record much less the application (Annexure P2) which was filed under Section 60(5) read with Rule 49 of the Code and not only Rule 49 of the Code. In this regard, he has drawn our attention to Pg. 28, 38 and also to Pg. 48 containing the prayer.
Counsel for Respondent has fairly conceded that the application has in fact been filed under Section 60(5) and not only Rule 49 of the Code.
In view thereof, we are of the considered opinion that there is an error in the approach of the Adjudicating Authority in dealing with the application filed by the Appellant considering it to have been filed under Section 49 alone whereas the application was not filed under Section 49 alone but it has been filed under Section 60(5) read with Rule 49 of the Code read with Regulation 11 of the Regulations.
This aspect of the matter is sufficient to set aside the order and remand back to the Adjudicating Authority to consider the application once again in terms of Section 60(5) read with Rule 49 of the Code read with Regulation 11 of the Regulations. Consequently, the appeal is allowed and the impugned order dated 18.04.2022 is set aside. The matter is remanded back to the Adjudicating Authority to decide again, taking into consideration the application as it is, having been filed under Section 60(5) read with Rule 49 of the Code read with Regulation 11 of the Regulations.
The parties are directed to appear before the Adjudicating Authority on 10th October, 2022.
It is needless to mention that we have not touched any part of the merit of this case which has been kept open.
Counsel for the parties may raise all the issues available to them before the Adjudicating Authority.
The Registry is directed to send the copy of this order to the concerned Adjudicating Authority for information.