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Judgment
ORDER
Per: Justice Rakesh Kumar Jain: (Oral)
11.07.2024: This appeal arises from an order dated 29.05.2024 allowing an application bearing I.A (IBC) 982 of 2024, filed by the Respondent to take on record the list of creditors dated 16.02.2024 and 05.03.2024.
Counsel for the Appellant has submitted that the impugned order has been passed without notice, therefore, it is contrary to the provisions of Rule 37 of the NCLT Rules, 2016 which provides for the issuance of show cause notice to the concerned parties.
He has also submitted that in para IV (C) of the application i.e. I.A (IBC) 982 of 2024, the Respondent has alleged that he had received a claim from the National Highway Authority of India (NHAI) for Rs. 500 Cr. which is an undecided claim because the arbitral proceedings are still pending and have not concluded into an award.
In this regard, he has relied upon a decision of this Court rendered in the case of CA (AT) (CH) (Ins) No. 12 of 2023 ‘Anheuser Busch Inbev India Limited Vs. Mr. Pradeep Kumar Sravanam’ and CA (AT) (Ins) No. 268 of 2023 ‘VAM Realcon Pvt. Ltd. Vs. Resolution Professional for DCP India Pvt. Ltd. Mr. Sanju Kumar’.
Issue notice. At this stage, Counsel appearing on behalf of the Respondent (RP) accepts notice in court. She has submitted that the claim of the NHAI has been considered after taking the document in support of the claims but she could not deny that the arbitral proceedings are still pending.
We have heard Counsel for the parties and after perusal of the record, are of the considered opinion, that there is an apparent fallacy in the procedure adopted by the Ld. Tribunal in allowing the application of the Respondent on its presentation without issuing notice to the other parties who are affected by the order. Rule 37 of the Rules provides that “the Tribunal shall issue notice to the respondent to show cause against the application or petition on a date of hearing to be specified in the Notice. Such notice in Form No. NCLT. 5 shall be accompanied by a copy of the application with supporting documents.”
It was incumbent upon the Ld. Tribunal to have issued notice in the application which had bearing on the interest of the Appellant who had to file the present appeal, inter alia, on the ground that the impugned order has been passed without notice.
It is well settled that justice should not only be done but seen to have been done which includes the principle of natural justice that a party should not be condemned without hearing.
Thus, in our considered opinion, the impugned order suffers from the vice of the non-application of the principle of natural justice as no opportunity of hearing was given to the Respondent by issuing notice, therefore, we set aside the impugned order dated 29.05.2024 and remand the matter back to the Ld. Tribunal to take a decision again on the said application i.e. I.A (IBC) 982 of 2024 after giving notice to the concerned parties including the Appellant and then decide the same by passing a speaking order. Accordingly, I.A. (IBC) 982 of 2024 is hereby restored.
The parties are directed to appear before the Ld. Tribunal on 22nd July, 2024.
Before parting, we make it clear that while allowing this appeal, we have not made any observations on the merits of the present lis which shall be within the domain of the Ld. Tribunal.