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Judgment
O R D E R
Heard learned Counsel for the Appellant as well as the Respondent.
This appeal has been filed against the order dated 28.07.2022 by which order, the Adjudicating Authority has rejected the Application filed under Section 7 of IBC by the Appellant. The Appellant filed Section 7 Application against the Corporate Debtor claiming an amount of Rs. 3.30 Crores, which according to the Financial Creditor was disbursed on 22.07.2020 which has not been paid. Adjudicating Authority considered the Application and rejected the Application without issuing notice by making following observations in paragraph-15 which is quoted below: …
15.In light of the above, we are of the view that as per the bank statements of the Financial Creditor, the amount i.e. Rs. 3,30,00,000/- was withdrawn on 22.07.2020, vide Cheque no. 000029, in the name of “Sehrawat Associates Pvt. Ltd.” who is not the Corporate Debtor in the present petition. But in Part IV of the Application, the Financial Creditor has stated that the total amount of debt due from the Corporate Debtor i.e., Optiemus Infracom Limited is Rs. 3,30,00,000/- and the date of disbursement was 21.07.2020 vide cheque no. 000029 drawn on Bank of Baroda. In view of the above, as sufficient material evidence is not placed before this Tribunal to appreciate the averments made in the Application against the Corporate Debtor and as the Corporate Debtor has also not acknowledged the debt due in any form, this Application under section 7 of the Code is devoid of merits.
Learned Counsel for the Appellant submits that the Adjudicating Authority has wrongly read the transaction dated 22.07.2020. The Bank Statement which indicates that by a cheque no. 29 a sum of Rs. 3.30 Crores was paid to Optimus Infracom Limited which entry of the Bank is dated 22.07.2020. Learned Counsel for the Appellant draws attention of this Tribunal, the Bank Statement which is at page 62 of the Appeal Paper Book. The Bank Entry dated 22.07.2020 is as follows:
“BANK OF BARODA DWARKA MAIN VARDHMAN PLAZA Date: 26-11-2021 Time: 12:13:46 ADDRESS: VARDHMAN PD PLAZA 1-6-12, MLU, DWARKA, NEW,DL, 110075 Helpline No.: 1800223344/18001024455/18002584455 BRANCH CODE NO.: 011-28033106-07 MICR CODE: 110012095 IFSC CODE: BARBODAWARK Page No. 3 A/c Number : 30300400000173 Account Open Date: 07-12-2018 Statement of account for the period of 01-04-2020 to 30-08-2020
| DATE | PARTICULAR | CHQ. NO. | WITHDRAALS | DEPOSITS | BALANCE |
… To SEHRAWAT ASSOCIATES PVT. LTD - DAWARK | |||||
| 22-07-20 | SERDEL-NEW | 29 | 3,30,00,000.00 | 6,18,65,405.57” | |
| … | |||||
Learned Counsel for the Respondent refuting the submissions, submits that there was no financial debt and since no Notice was issued by the Adjudicating Authority, the Respondent could not appear and oppose the Application. He submits that the Application has been rejected by the Adjudicating Authority.
In view of the fact that the Adjudicating Authority has rejected the Application on mis-reading the bank statement, we in the interest of justice, direct that the Application may be revived before the Adjudicating Authority for consideration in accordance with law.
In view of the above, order dated 28.07.2022 is set aside. Company Petition No. (IB)- 229(ND)/2022 is revived before the Adjudicating Authority to be heard and decided in accordance with law. We are not expressing any opinion on merit of the case on either of the parties. The appeal is allowed to the above extent.