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Judgment
[Per : Justice Rakesh Kumar Jain (Oral)]
This appeal is directed against the order dated 06.12.2023 passed by National Company Law Tribunal, Mumbai Bench-IV (‘Tribunal’) by which an application filed under Section 7 of the Insolvency & Bankruptcy Code, 2016 (‘Code’) bearing CP (IB) No. 677/MB-IV/2023 for initiation of the CIRP against Malwan Hotels Pvt. Ltd. has been dismissed.
Counsel for the Appellant has submitted that the Tribunal has committed an error in not the completing the pleading, in so far as the Rejoinder of the Appellant is concerned, therefore, the Appellant was denied the right to rebut the new averments made by the Respondents which were conspicuous by its absence in the Reply dated 09.11.2022 to the demand notice.
It has further submitted that the when the case was listed for hearing, the Appellant had specifically requested to the Learned Tribunal to adjourn the case for filing the Rejoinder to the Reply because he had received the reply from the Respondent on 06.11.2023 at 11:13 pm and there was hardly anytime for the Appellant to prepare the Rejoinder and file the same.
He has also submitted that Rule 2(19) of the NCLT Rules, 2016 states that "pleadings" means and includes applications including interlocutory application,, petitions, appeals, revisions, replies, rejoinders, statements, counter claims, additional statement supplementing the original application and reply statement under these rules and as may be permitted by the Tribunal.”
It is submitted that on 26.09.2023, the Corporate Debtor sought time to file Reply. The court granted two weeks time and also directed the CD to serve a copy of the Reply to the Appellant atleast two days in advance from the next date of hearing. The said order is reproduced as under :-
“ORDER
1.Ms. Vinita Melvin, Ld. Counsel for the Operational Creditor present. Ms. Surekha Yadav i/b Mr. Avinash R. Khanolkar, Ld. Counsel for the Corporate Debtor present.
2.Counsel for the Corporate Debtor seeks some time for filing reply. Two weeks’ time granted. Counsel is directed to serve the copy of reply to the other side, at lease two days in advance.
3.Post this matter on 07.11.2023 for further consideration.”
It has also come on record and is not denied that the CD sent the reply through e-mail on 06.11.2023 at 22:13. The said e-mail is also reproduced as under :-
“------Forwarded message ---------From: Adv. Avinash R. Khanolkar, [email protected] Date: Mon, 6 Nov 2023 at 22:13 Subject: Re: Mr. Lucindo Domingos Antonio De Faria v. Malwan Hotels Pvt. Ltd., C.P (IB) 677 of 2023 To: Shreni Shetty [email protected] Cc: Swati Chandan [email protected] ,Vinita Melvin [email protected] ,Ashish Bhakta [email protected] ,Antara Kalambi [email protected] Hello Adv. Shreni, In reference to trailing mail please find the herewith annexed copy of Reply to the Company Petition being filed with NCLT, Mumbai on behalf of my client M/s. Malwan Hotels Private Limited. Please revert for pertaining queries, if any. With Best Regards. Adv. Avinash R. Khanolkar 09970229636 Office : 52, 5th Floor, J B House, Raghunath Dadaji Lane, Beside Fountain Plaza Hotel, Fort, Mumbai, Maharashtra - 400 001.”
It is further submitted that on the adjourned dated i.e., 07.11.2023 the court reserved the order. The said order is reproduced as under :-
“ORDER
1.Ms. Vinita Melvin, Ld. Counsel for the Operational Creditor present. Ms. Surekha Yadav, Ld. Counsel for the Corporate Debtor present.
2.Heard the counsel from both sides and perused the records. Reserved for orders.”
The grievance of the Appellant at this stage is that despite his request, the Learned Tribunal has not allowed the Appellant to file Rejoinder and relied upon the Reply filed by Respondent which was not filed in terms of the order passed on 26.09.2023 in which it is clearly mention that “Counsel is directed to serve the copy of reply to the other side, at least two days in advance”. He further submits that in view of the aforesaid order, the Learned Tribunal should not have taken the Reply of the Respondent on record because the Respondent did not abide by the direction contained in order dated 06.09.2023 and was not eligible to file the reply on record.
Be that as it may, he has confined with the argument at this stage, to allow him to file Rejoinder to the Reply by Respondent and for that matter requested that the Impugned Order may be set aside and the matter may be remanded back to the Learned Tribunal, giving him an opportunity to file the Rejoinder to the Reply filed by the Respondent. He has also another grievances that the written submissions filed on 09.11.2023, after the order was reserved on 07.11.2023. has also not taken into consideration at the time when the Impugned Order was passed. He has requested that while remanding the matter back, the Tribunal may also be directed to consider the written submission filed by the Appellant now after filing the Rejoinder.
Counsel for the Respondent has not raised any objection to the contention made by the Appellant. In view thereof, the present appeal is hereby allowed. Impugned Order is set aside. The CP (IB) No. 677/MB-IV/2023 is restored to its original number and the matter is remanded back to the Tribunal to proceed with it in accordance with law after giving an opportunity to the Appellant to file Rejoinder to the Reply filed by the Respondent. The Learned Tribunal is further directed that the written submissions same shall also be considered after the Rejoinder is filed.
The parties are directed to appear before the Tribunal on 28.02.2025. No costs. I.A. if any, are closed.