AI Structured Summary
Not yet generated for this judgment
Judgment
O R D E R
01.06.2023 Heard Learned Counsel for the Appellant.
This Appeal has been filed against the Order dated 2nd March, 2023 by which the Adjudicating Authority has admitted Section 7 Application of I&B Code, 2016 filed by the Financial Creditors. The Adjudicating Authority in paragraph 3 has noted that in spite of opportunities to the Corporate Debtor, no one has appeared nor Reply was filed. The Adjudicating Authority having found that there was debt and default, the admission order was passed.
Learned Sr. Counsel appearing for the Appellant submits that Learned Counsel who was appearing before the Adjudicating Authority had no authority to appear and opportunity ought to have been given to the Corporate Debtor to file a Reply. It is further submitted that out of two projects, one project is already in the RERA which facts were required to be considered. He submits that the Adjudicating Authority in the Order itself has noted that amount of Rs. 9 Crores was paid by the Corporate Debtor which according to the Appellant was payment for One Time Settlement.
We have considered the submissions of Learned Sr. Counsel for the Appellant and perused the record.
In paragraph 3 of the Order, following was observed:
“3.Notice was issued by this Adjudicating Authority to the Corporate Debtor on 06.05.2022. Since there was no representation on behalf of the Corporate Debtor, despite being given specific and definite opportunities to file Vakalatnama and Counter Affidavit, this Adjudicating Authority is constrained to pass this order on the basis of Financial Creditor’s arguments only.”
When the ample opportunities have been given to the Appellant to file Vakalatnama and Reply which is not complied, no fault can be said to have been committed by the Adjudicating Authority in proceeding to hear the Financial Creditors. The fact that agents represented on behalf of the Appellant had appeared clearly indicate that Corporate Debtor was well aware of the proceedings. We thus do not find any substance that further opportunity was to be given.
Submission of Appellant that Rs. 9 Crores have been paid which has been acknowledged in the Order itself which was One Time Settlement also does not appeal to us. In the Appeal, which has been filed by the Appellant challenging the Impugned Order there is no material to indicate that there was any settlement for Rs. 9 Crores. The Learned Counsel for the Financial Creditor submitted that balance amount outstanding is of Rs. 108 Crores after adjusting the amount already paid. There being no material on record to indicate that there was any One Time Settlement, submission of the Appellant can not be accepted.
The next submission of Learned Sr. Counsel for the Appellant that one project is in the RERA, suffice it to say that the factum of one project being in RERA has no bearing on maintainability of Section 7 Application which has rightly been admitted by the Adjudicating Authority.
We do not find any merit in the Appeal, the Appeal is dismissed.