The NCLAT held that the impugned order was in violation of the principle of natural justice because the impugned order was a non-speaking order.
The National Company Law Appellate Tribunal (NCLAT), New Delhi Bench comprising Justice Rakesh Kumar Jain, Judicial Member and Dr. Alok Srivastava, Technical Member was hearing five appeals on Wednesday.
In the present case, there were five appeals and the issue involved in these appeals was common the impugned order has been passed on the same date i.e. 13.08.2021 dismissing the application filed under Section 9 of the Insolvency and Bankruptcy Code, 2016.
Facts:
It was pertinent to mention that the amount claimed in all five appeals by the Appellant was towards his brokerage for the units booked/sold. All five applications have been dismissed by the Adjudicating Authority on the ground of a pre-existing dispute which has been based upon the email dated 01.03.2017 and similar findings. The relationship between the Appellant and the Respondent was based upon an agreement dated 09.03.2016 which was similar in all five cases. However, the terms and conditions in the agreement dated 09.03.2016, executed in all five cases were the same. It was clear that the Appellant would be entitled to its brokerage as per the agreement.
The Adjudicating Authority has dismissed the application, subject matter of all five appeals, on the ground that there was a pre-existing dispute between the parties which has been clearly intimated vide email dated 01.03.2017.
Appellant’s Submission:
Counsel for the Appellant has vehemently argued that nothing was clear from the impugned order, passed separately in all the five appeals, by the Adjudicating Authority as to how the email dated 01.03.2017 highlights a pre-existing dispute, therefore, according to the Appellant, the impugned order was a non-speaking order and deserves to be set aside on this ground alone.
Respondent’s Submission:
Counsel for Respondent has failed to give any satisfactory answer and all that has been stated is that the Appellant had actually not booked as many flats in all five projects, mentioned hereinabove, as has been claimed in the application filed under Section 9 of the Code.
NCLAT’s Analysis:
The Appellate Authority noted that it was an admitted fact that the genesis of their relationship as a developer and consultant is the agreement dated 09.03.2016 as per which the Respondent was liable to pay consultation charges to the Appellant for the booking of the unit(s) in terms of the clauses of the agreement much less clause 6 and 10.
The Adjudicating Authority has dismissed the application, filed under Section 9 of the Code by the Appellant, on the ground that there was a pre-existing dispute which was raised before filing the petition and was clearly intimated in the email dated 01.03.2017. But there was no specific finding recorded by the Adjudicating Authority explaining how it has reached the conclusion that the said email raised a dispute already existing between the parties.
The Appellate Authority were of the considered opinion that the impugned order was in violation of the principle of natural justice because the impugned order was a non-speaking order. Consequently, all five appeals were allowed and the impugned orders were set aside. The matter was remanded back to the Adjudicating Authority to decide them afresh by giving reasons and passing a speaking order.