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Judgment
Justice Rakesh Kumar Jain: (Oral)
This appeal is directed against the order dated 21.02.2022, passed by the ‘Adjudicating Authority’ (National Company Law Tribunal, New Delhi), by which an application bearing IA No. 1148 of 2021 filed by the Liquidator in CP (IB) No. 1226/ND/2019 for certain directions, has been allowed.
Brief facts of the case are that the application under Section 7 of the ‘Insolvency and Bankruptcy Code, 2016’ (in short ‘Code’), filed by one Mr. Ashish Banker (Financial Creditor) against M/s. Nu Tek India Limited (Corporate Debtor) was admitted on 23.08.2019.
The liquidation order was passed by the Adjudicating Authority on 22.06.2020 for liquidation of the Corporate Debtor. During the pendency of the liquidation proceedings, the Liquidator filed an application under Section 35(1)(n) of the Code R/w Regulation 9 of the IBBI (Liquidation Process) Regulation 2016 in which following prayers were made:
• “Allow the present application and direct the Respondent Samsung India Limited to release Rs. 22,73,090/- adjusted by them without any authority under law.
• Pass an order directing the respondent to pay cost of the proceedings.”
The said application has been allowed vide impugned order and hence the present appeal.
Before we proceed further it is pertinent to mention that this Tribunal on 05.04.2022 passed the following orders:
“Learned Counsel for the Appellant submits that the Appellant has already paid the amount of GST Rs. 19,79,414/- to the Corporate Debtor by way of reversing 'Input Credit Tax' which was not deposited by the Corporate Debtor with the GST Authorities. In view of the direction of the Adjudicating Authority to refund the amount the Appellant shall be put to pay the amount twice.
Issue Notice to the Respondent through speed post as well as email. Requisites along with process fee, if not filed, be filed within two days.
Respondent to file Reply-Affidavit within two weeks. Rejoinder, if any, may be filed within two weeks, thereafter List this Appeal 'For Admission (After Notice)' on 09th May, 2022. Meanwhile, Direction issued by the Adjudicating Authority directing the Appellant to refund the amount of Rs. 22,73,090/-shall remain stayed.”
It is also pertinent to mention that no one is appearing on behalf of the Respondent from the last three-four dates and today is also not an exception.
Be that as it may, while going through the impugned order, we had found that the Adjudicating Authority has made the following observations in para 7:
“7. Having heard the submissions made and documents placed on record, it is seen that the respondent in their letter dated 19.03.2020 had admitted that the corporate debtor had provided deployment services to the respondent vide agreement dated 20.10.2015 under which orders were issued from time to time and further admitted that the corporate debtor had raised invoices for Rs. 3,58,20,208/- and against which the respondent had pay only Rs. 3,12,03,755/-. The respondent had also acknowledged that they have adjusted the amount of Rs. 48,16,433/- towards GST/not returned tools (Rs. 22,46,054) and towards credit note/excess billing (Rs. 23,70,379).”
Thereafter, the Adjudicating Authority has drawn the conclusion in the following manner:
“As a consequent of above discussion and reasoning, the liquidator is entitled to claim an amount of Rs. 22,73,090/-from the Respondent, Samsung India Electronics Pvt. Ltd as prayed. The Application is therefore allowed, directing Respondent, Samsung India Electronics Pvt. Ltd to refund the amount of Rs. 22,73,090/- in the account of the corporate debtor within one week from this order. Application is allowed & disposed of.”
As a matter of fact, the amount which has been ordered to be claimed by the Liquidator from the present Appellant of Rs. 22,73,090/- is not reconcilable with the amount mentioned in the para 7 of the impugned order (supra).
In such circumstances, we are of the considered opinion that there is a patent error in the impugned order in respect of amount which has been awarded for which no basis has been made as to how the Adjudicating Authority has come to the conclusion that Rs. 22,73,090/- is due and payable by the Appellant herein.
In such circumstances, there is no alternative but to set aside the impugned order and remand the matter back to the Adjudicating Authority to pass a fresh order explaining as to how the aforesaid amount of Rs. 22,73,090/- is due and is payable by the Appellant. The Appeal is thus allowed. Impugned order is set aside. The case is remanded back to the Adjudicating Authority to decide the matter afresh in accordance with law. The parties are directed to appear before the Adjudicating Authority on 15.03.2023. It is needless to mention that Appellant can take pleas both factual and legal which are taken in this appeal, before the Adjudicating Authority.