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Judgment
Per Justice N. Seshasayee, Member (Judicial)
The Appellant herein is the Financial Creditor who has approached this Tribunal with this appeal challenging the order dismissing its petition filed u/s 7 of IBC on the ground that the appellant has not filed the proof of service of notice on the petition to the respondent as directed by the authority.
The Ld. Counsel for the appellant submits that on 17.10.2025 the Tribunal ordered notice and directed the appellant to submit the proof of service before the next date of hearing and fixed the next date of hearing on 24.11.2025. The Ld. Counsel added that the notice was served as directed and proof of service was also posted on 22.11.2025 at 1:52 p.m.
On 24.11.2025 the case was listed however it did not reach. However, when the case was taken up on 26.11.2025 the Tribunal had dismissed the petition on the ground that till that date (26.11.2025) no affidavit of service has been filed. The Ld. Counsel added that this is an error on the face of Annexure-6 which provides the details of affidavit which shows that even 22.11.2025 proof of service has been uploaded.
The Ld. Counsel submitted that in the meantime the appellant has also taken out IA No. 6000/2025 but this also came to be dismissed on 11.12.2025 on the ground that it lacks merit. The Ld. Counsel circulated copy of this order.
Very evidently, the Adjudicating Authority have been committed an error. The Annexure-6 demonstrates that notice of service has been provided even prior to 26.11.2025 and this has been overlooked. Right to litigation is the substantive right in law that cannot be brittle down neither by technicalities nor by any mistakes. If the maxim ‘Res ipsa loquitur’ can be applied then the appellant needs to proof anything for Annexure-6 to the appeal memorandum demonstrates the same. Once ‘Res ipsa loquitur’ keeps in the other maxim ‘Actus Curiae Neminem Gravabit’ also steps in no party shall be penalised for the mistake of the Court.
The subsequent order dismissing the subsequent IA No. 6000/2025 only compounds an issue. Even though no appeal has been preferred since an original order itself is formed to be unsustainable on facts. We choose to set aside the same.
In conclusion the appeal is allowed. The Adjudicating Authority is required to consider the petition under Section 7 on its own merits and in accordance with law.