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Judgment
ORDER
04.03.2022: Heard Shri Arvind Nayar, Learned Senior Counsel for the Appellant and Shri Rohan Rajadhyaksha, Learned Counsel appearing for the Respondent. With the consent of the parties, this Appeal is disposed of at the admission stage.
This Appeal has been filed against the order dated 03.08.2021 passed by the Adjudicating Authority (National Company Law Tribunal), Mumbai Bench, Court No.5, by which the Adjudicating Authority, on an Application filed by the Respondents under Section 95 of the Insolvency and Bankruptcy Code, 2016 (“I&B Code’ for short), has passed an order observing that Resolution Professional shall exercise all powers as enumerated under Section 99 and he was directed to make the recommendations with reasons in writing for acceptance or rejection of the Application.
Learned Counsel for the Appellant contends that the Adjudicating Authority without there being any report under Section 99 has returned findings regarding default in paras 13 and 14 of the order which was uncalled for. It is submitted that the findings regarding default by the Appellant who is a personal guarantor can be considered only after report is submitted under Section 99. It is submitted that in view of the said findings, the Resolution Professional is also handicapped in giving an appropriate report on the default.
Learned Counsel for the Respondents fairly submitted that in the facts of the present case, since no order has yet been passed for admission or rejection of the Application, the findings which are recorded in the impugned order regarding default be set aside and the matter may be remitted to the Adjudicating Authority for passing an order under Section 100. It is further submitted that the observations regarding findings of default may be expunged and Interim Resolution Professional may be asked to submit fresh report.
We have considered the submissions of the Learned Counsel for the parties and perused the record.
This Tribunal in “Kanchan Nanubhai Desai, Personal Guarantor Anoushka Medicare & Diagnotics Pvt. Ltd. and Ors. Vs. Finquest Financial Solutions Pvt. Ltd. and Ors.- Company App. (AT) (Ins.) Nos. 1089, 1090 & 1091 of 2021” has already taken the view that at the stage before passing an order under Section 100, there was no occasion to record any finding of default by the Adjudicating Authority. In the said judgment, also this Tribunal has directed deletion of the observations of the Adjudicating Authority regarding finding of the default. We are of the view that the same course is to be followed in the present case also. In view of the above, we hold that findings recorded regarding default are deleted from the impugned judgment especially in paras 13 and 14. Let Resolution Professional may submit a fresh report under Section 99 within two weeks. The Adjudicating Authority after receiving the report shall take a decision either admitting or rejecting the Application as contemplated under Section 100 of the I&B Code after hearing the parties.
With these observations, the Appeal is disposed of.