AI Structured Summary
Not yet generated for this judgment
Judgment
This is an application (I.A. No. 4083 of 2023) praying for condonation of 83 days delay in refiling the Appeal. Cause shown sufficient. Delay in refiling is condoned.
Heard Learned Counsel for the Appellant.
This Appeal has been filed against the Order dated 12th April, 2023 passed by the Adjudicating Authority by which Section 9 Application filed by the Appellant has been rejected. Notices were issued in the Appeal which was also published in the Newspaper but no one as appeared on behalf of the Respondent.
Learned Counsel for the Appellant submits that the Adjudicating Authority has rejected the Application on the ground that Operational Creditor has not filed the affidavit as required by Section 9(3)(b) o the Code.
We have considered the submission of Learned Counsel for the Appellant and perused the record.
In paragraph 4.4, the Adjudicating Authority has given following reason for rejecting the Application:
“This Bench is of the considered view that the Affidavit under Section 9(3)(b) of the Code is required to be filed and the same must be in relation to the notice of dispute with regard to receipt or non-receipt of the payments made by the Corporate Debtor. Hence, in view of the aforesaid, the Petition filed by the Operational Creditors deserves to be dismissed on the ground of non-filing of the Affidavit under Section 9(3)(b).”
Learned Counsel for the Appellant has referred to and relied on the proviso to Section 9(3)(b) which requires that Appellant should be given an opportunity to remove the defects if any in the application. It is submitted that no opportunity was given to the Appellant to cure the defect. We are of the view that ends of justice will be served in setting aside the Order of the Adjudicating Authority and reviving the Section 9 Application to be heard afresh before the Adjudicating Authority. Appellant is allowed three weeks time to file requisite affidavit before the Adjudicating Authority and the Adjudicating Authority shall fix a date after three weeks and hear the application in accordance with law.
Appeal is disposed of.