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TMI Blog2024 (9) TMI 1423X X X X Extracts X X X X X X X X Extracts X X X X ..... at is, on the facts as pleaded by the Appellant in the Memo of Objection, would render Judgment being perverse and without application of mind especially when the pleadings of the Appellant remain undenied by the Respondent s Counsel having denied to file a Counter Affidavit, qua the pleadings. Accordingly, the Judgment dated 09.07.2024 as rendered in CP/IB/173(CHE)/2023 would be held to be vitiated, owing to the ground which has been taken by the appellant that even after taking note of the Appellant s contention raised in his objection dated 14.03.2024, and referring to the same in the body of the Judgment, the Learned Adjudicating Authority has not recorded any, no finding on the same in its judgment. Even in the light of the Judgment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to file the Counter Affidavit to controvert pleading of the appellant, in that eventuality, the pleadings raised by the adversary i.e., the appellant herein would be treated to be admitted and the aforesaid principle has been settled by the Hon ble High Court of Delhi, in a Judgment as reported in 1993 Volume 25 DRJ230, Naresh Kumar Bansal Vs G.S. Kalra Ors., wherein Para 3 which is extracted hereunder: - 3. The petition was admitted by this Court on 31st October, 1998. Inspite of the service nobody has come forward on behalf of the respondents to defend the case nor any counter affidavit has been filed. In the absence of the counter affidavit, the averments made by the petitioner has to be accepted as correct, as the averments remain unr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich he maintained throughout in his submission that since the Judgment does not suffer from any apparent error, no Counter Affidavit, would be required to be filed as such requiring to call for any interference, owing to the said plea and for the reasons above, we are constrained to decide the appeal on merits, in the absence of Counter Affidavit which was denied to be filed by the Respondent and to proceed to decide the appeal based on its pleading. The Appellant who happens to be a Suspended Director of M/s. Cema Electric Lighting Products India Private Limited the Corporate Debtor has submitted that, he had filed a Memo before the Learned Adjudicating Authority, in CP/IB/173(CHE)/2023, raising various contentions before NCLT, qua aspect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... brought it to its warehouses for the Operational Creditor to inspect and thereafter provide credit, which despite the Order dated 30th January, 2024 passed by this Hon ble Tribunal has not fructified, owing to the Operational Creditor s failure to abide by the directions issued by this Hon ble Tribunal . The appellant pleads inaction on the part of the Learned Adjudicating Authority. He has submitted that, in the light of the objection filed by him on 14.03.2024, he submitted that unless the Operational Creditor extends his cooperation and complies with the direction of the Tribunal, by inspecting of the defective liquidation estate, and given credit to the extent of the value of the said defective article, which has been received within th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if it is to be read with the observation made in Para 26 of the impugned Judgment, the Tribunal was apparently conscious of the issue raised by the appellant, in that eventuality, the Tribunal was duty bound, that while drawing its observation as made in the Impugned Judgment it ought to have considered the pleading raised on 14.03.2024 by the appellant, while recording a contrary finding in Para 39 Sub Para (c), observing thereof that, the Corporate Debtor has neither shown any proof of pre-existing dispute nor had denied the existence of debt towards the Operational Creditor, coupled with the fact that, it was observed in the Judgment that it was only upon the receipt of demand notice under Section 8 of the I B Code, the Corporate Debtor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave to be given sufficient opportunity during the proceedings to defend, themselves, and that it should not be a mere superficial opportunity to raise their defense but an opportunity, where at the minimum, the defense raised by the party concerned are to considered and in a fair manner by the Tribunal, before drawing any conclusion to the contrary. In the instant case, since in Para 26 of the Impugned Order, NCLT has recorded that it was conscious of the objection raised by the Appellant in the objection, failure to consider the same and to record specific finding on it, that is, on the facts as pleaded by the Appellant in the Memo of Objection, would render Judgment being perverse and without application of mind especially when the pleadi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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