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Judgment
17.02.2025: Heard Counsel for the Appellant and Ld. Counsel for the Respondent.
These two appeals have been filed against the order dated 28.11.2022 and 21.12.2022 passed by the National Company Law Tribunal, New Delhi, Court-III in CP IB No. 1517 (ND)/2019. Section 9 application was filed by the operational creditor claiming an amount of Rs. 6,32,74,616.67/-with interest. It appears that orders were reserved on 12.09.2019 and thereafter an application was filed by the corporate debtor stating that amount of Rs. 26,56,296/- has been paid on 12.09.2019 and two other payments were made.
Subsequently, the matter came for before the Adjudicating Authority on 28.11.2022 on which date the following order was passed:
“We have heard Mr. Saurabh Upadhyay, Ld. Counsel appearing for the Applicant and Mr. Shashwat Bajpai, Ld. Counsel appearing for the Respondent. On 28.02.2020 this Tribunal passed an order directing the parties to suggest two names of the Chartered Accountants, failing which, the matter would be referred to Official Liquidator to appoint independent Chartered Accountant. We find that the said order is still under operation as it has not been challenged before the Hon'ble NCLAT. Further, the parties have not suggested names of Chartered Accountant.
We are therefore of the view that the said order needs to be complied with and therefore direct the Official Liquidator to suggest the name of a Chartered Accountant within a week who would look into the accounts for reconciliation. The Official Liquidator shall suggest the name in a sealed cover. We make it clear that the expenses of the Chartered Accountant shall be shared equally by both the parties. The Petitioner as well as Court Officer shall send a copy of this order to the Official Liquidator for necessary compliance.
List on 21.12.2022”.
By subsequent order court has identified the Chartered Accountant aggrieved by these two orders, these appeals have been filed.
Shri Krishnendu Datta, Ld. Sr. Counsel appearing for the Appellant submits that mere fact that operational creditor has agreed that there has to be reconciliation of account itself suggest that there was dispute and Section 9 application deserves to be rejected on this ground alone. It is submitted that although no orders were passed in Section 9 but this Tribunal may in exercise of its jurisdiction in the appeal may direct for dismissal of Section 9 application.
Ld. Counsel for the Respondent submits that the Respondent has no objection in event all the other prayers made in the appeal are allowed except prayer (c). He submits that no adjudication have been made on Section 9 application the same required to be considered by adjudicating authority after hearing the parties. The prayers in the appeal are as follows:
a)Set aside the Impugned orders dated 28.11.2022 and 21.12.2022 passed by Ld. NCLT, New Delhi bench- III.
b)Stay the operation of the Impugned Orders dated 28.11.2022 and 21.12.2022 till the pendency of this Appeal before the Hon'ble Appellate Tribunal.
c)Dismiss the Application (No. CP(IB)1517/2019) filed by the OC against the CD, having admitted to the pre-existing disputes requiring reconciliation as recorded in all Orders of the Ld. NCLT.
d)Stay the proceedings in CP(IB)1517/2019 pending before the Ld. National Company Law Tribunal, till the pendency of this Appeal before the Hon'ble Appellate Tribunal.
e)Pass any other/ further order(s) as this Hon'ble Appellate Tribunal may deem fit and proper in the interest of justice”.
It is submitted by Ld. Counsel for the Respondent that on the suggestion made by the adjudicating authority the operational creditor has also agreed for appointment of Chartered Accountant which cannot lead to the conclusion that there is any pre-existing dispute has been accepted by the operational creditor.
We have considered the submissions of the Counsel for the parties and perused the record.
From the orders passed on 28.11.2022 on the Section 9 application which are impugned in the appeal, it is clear that the said order is only interlocutory order in Section 9 petition. No final orders have been passed in Section 9 petition and Section 9 petition is still pending for consideration before Adjudicating Authority. The submission of the appellant that since direction has been issued for appointing a chartered accountant for reconciliation there is pre-existing dispute, does not commend us. The circumstances under which the adjudicating authority has directed for appointment of chartered accountant has to be looked into by the adjudicating authority itself and that cannot lead to accepting the submission that the operational creditor has accepted the pre-existing dispute.
On the question of pre-existing dispute, it is for the adjudicating authority to consider all materials on record and take a decision as to whether there is a pre-existing dispute or not.
We thus are of the view that orders dated 28.11.2022 and 21.12.2022 deserves to be set aside. Both the orders are set aside. Appeal is disposed of. Let adjudicating authority to consider Section 9 application and take a decision in accordance with law.