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Judgment
These two Appeals have been filed by the Suspended Director of the Corporate Debtor. In Company Appeal (AT) (Ins.) No. 555 of 2022 and Company Appeal (AT) (Ins.) No. 556 of 2022, the Application under Section 7 was filed by the Financial Creditors in which Application notices were issued and Corporate Debtor appeared and asked for time to file Reply. Matter was taken on 05.05.2022 and following order was passed:-
“Ld. Counsel appearing for the Respondent submits that she has filed the reply yesterday. Whereas the Ld. Counsel appearing for the Petitioner submits that the copy of the reply has not been served upon him. The reply is not available on DMS.
We further notice that vide order dated 28th March, 2022, the respondent was directed to file the reply within 3 weeks but that order has not been complied by the respondent. so, considering this, we hereby close the right of reply of the respondent.
List the matter on 6th July, 2022.”
Appellant has come up with the case that he has e-filed the Reply on 04.05.2022. Copy of the Reply which is claim to be filed before the Adjudicating Authority is also annexed along with the Appeal at Page 95. The receipt which has been issued to Appellant with regard to uploading of the documents is to the following effect:-
“You have uploaded below Document Successfully
IA Filing/ Filing No : 0710102002492022
Filing Date : 04-05-2022
S. No.
Filing Number
Miscellaneous No.
Party Name
File Name
1
0710102002492022
0710102002492022/3
VIPUL LIMITED
Reply_CP (IB)
156 of 2022.pdf
2
0710102002492022
0710102002492022/3
VIPUL LIMITED
dhawanco.in
Mail- Advance
ServiceAdditional
Affidavit in CP
(IB) No. 156
(PB) of 2022-
Payal Jain &
Ors. V. Vipul
Limited.pdf
The Adjudicating Authority has observed in the order that the Reply is not available on DMS (Data Management System). Further, it was observed that on 28.03.2022, Respondent was directed to file the Reply within three weeks which order has not been complied with.
Learned Counsel for the Respondents submits that in fact, two weeks’ time was allowed which expired long back. The Adjudicating Authority by order has closed the right of reply of the Respondent. Learned Counsel for the Respondents submits that the Respondent/Appellant failed to file Reply within time allowed and earlier also he was granted time and no indulgence ought to have been given to the Respondent.
We have considered the submissions of the Counsel for the parties and perused the record.
From the material on the record, it does appear that the Reply which was filed by the Appellant was uploaded and e-filing receipt dated 04.05.2022 has been issued to the Appellant. The fact that the said Reply is not available on DMS may be a factor to be considered but in event, the Reply was filed on 04.05.2022, there was no occasion to close the right of reply of the Respondent. The Adjudicating Authority right to have not taken such technical view in the matter and close the right of reply of the Respondent especially when the Reply was already filed. The Adjudicating Authority could at best have directed the Appellant to pay some costs which could have substantially protect the interest of both the parties. Copy of the Reply has also been received by the Counsel for the Respondent as has been submitted before us, hence, we are of the view that let the Respondents i.e. Financial Creditors may file their Rejoinder to the Reply within three weeks from today because the matter is being now posted on 06.07.2022. We are of the view that on 06.07.2022 both the Reply of the Corporate Debtor and the Rejoinder of the Financial Creditor be considered and it shall be open for the Adjudicating Authority to proceed in accordance with the law.
With the aforesaid observations, we set aside the order dated 05.05.2022 and dispose of the Appeal accordingly. We further are of the view that the Appellants in both these Appeals should pay the cost of Rs.10,000/-to the Financial Creditors each.