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Judgment
Per: Justice Rakesh Kumar Jain (Oral)
26.03.2025 This appeal is filed by the Operational Creditor whose application filed under Section 9 of the Code before the Tribunal has been dismissed by the impugned order dated 27.04.2022.
At the outset, Counsel for the Appellant has submitted that the impugned order has been passed by the Tribunal without giving any reason, therefore, it suffers from vice of non-application of mind as well as the order is totally non-speaking. In this regard, he has read over the entire impugned order in which we have found that the Tribunal has only recorded the submissions made by both the parties and ultimately in para 34 of the order, the Tribunal has observed that there was a pre-existing dispute between the parties, therefore, the application filed by the Appellant was not maintainable.
Counsel for the Appellant has submitted that for the purpose of observing that there was a pre-existing dispute between the parties, a finding has to be returned by the Tribunal as to how it has reached to the conclusion that there was a pre-existing dispute. Since, the said finding is conspicuous by its absence, therefore, it is submitted that the impugned order is totally non-speaking and violates the principles of natural justice.
Counsel for Respondent has though argued to defend the impugned order but he has failed to point out any finding recorded by the Tribunal on the basis of material on record except that the court has perused the pleadings of the parties, heard the arguments and then recorded a finding that there was a pre-existing dispute.
Thus, in our considered opinion, the approach of the Tribunal is totally unwarranted and illegal because the Tribunal is required to give reason in its order as to why the application filed under Section 9 is dismissed precisely on the ground of pre-existing dispute.
In such circumstances, we have no other alternative but to remand the matter back to the Tribunal with a direction to decide the same again by giving reasons much less cogent in its order either agreeing with the Appellant or otherwise.
Consequently, the appeal is allowed and the impugned order is set aside. The main petition is hereby resorted to its original number. The parties are directed to appear before the Tribunal on 14th April, 2025.
The Tribunal is further directed to decide the application filed under Section 9 of the Code as early as possible but preferably within a period of two months from the date of appearance of the parties.
We make it clear here that while passing this order, we have not made any observation on the merit of the case.
The parties to the lis may, if so advised, file the additional affidavit. I.As, if any, stands closed.