# In the matter of Yogesh Kundra Vs. SEW & Prasad Joint Venture & Anr. Company Appeal (AT) (Insolvency) No. 53 of 2021

> NCLAT judgment dated 2021-10-28. Citation: TCN-2021-NCLAT-00061. The case involves a Company Appeal (AT)(CH)(INS) No.53/2021 before the National Company Law…

- **Court:** NCLAT
- **Order date:** 28 Oct 2021
- **Citation:** TCN-2021-NCLAT-00061
- **Category:** IBC
- **Source page:** https://caseease.in/cases/ibc/nclat-new-delhi/yogesh-kundra-vs-sew-prasad-joint-venture-anr-company-appeal-e3333a1f

## Summary

### Background

The case involves a Company Appeal (AT)(CH)(INS) No.53/2021 before the National Company Law Appellate Tribunal (NCLAT), Chennai Bench. The initial judgment by Hon'ble Justice Mr. M. Venugopal, Member (Judicial), dismissed the appeal. However, Mr. V.P. Singh, Member (Technical), concluded that the petition under Section 9 of the I&B Code was not maintainable and opined that the appeal should be allowed and the admission of the petition filed under Section 9 of the I&B Code should be set aside. Due to this divergent opinion, the matter was referred to a third member.

## Facts

Yogesh Kundra filed a Company Appeal (AT)(CH)(INS) No.53/2021 against SEW & Prasad Joint Venture & Anr. The initial judgment by a judicial member of the NCLAT dismissed the appeal. However, a technical member concluded that the petition under Section 9 of the I&B Code was not maintainable and favored allowing the appeal. This difference in opinion led to the nomination of a third member, Justice Mr. Jarat Kumar Jain, who concurred with the technical member's view. The 1st Respondent/Operational Creditor, being aggrieved by the third member's judgment, filed a Civil Appeal before the Supreme Court and requested an adjournment to obtain stay orders. The NCLAT ultimately allowed the appeal based on the majority opinion.

## Issues and analysis

### Issue 1: Whether the petition under Section 9 …

**Ratio:** The ratio is based on the interpretation and application of Section 9 of the I&B

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**Reasoning:** The reasoning of the technical member, which was ultimately supported by the third

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**Interpretation:** The interpretation of Section 9 of the I&B Code is central to this issue.

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**Application:** The application of the ratio and reasoning to the specific facts of the case

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## Parties

- **Judges:** M. Venu…; V. P. S…; +1 more
- **Appellants:** Yogesh K…
- **Respondents:** SEW & Prasad…
- **Advocates:** Varsha Ba…; Amir Ba…; +3 more

## Timeline

- **2021-06-18 — Initial Jud…**: Judgement dated 18.06.2021 in Company Appeal (AT)(CH)(Ins) No.53/2021 by Hon'ble Justice…
- **2021-06-22 — Nomination of Third…**: The Hon'ble Third Member, Justice Mr. Jarat Kumar Jain, Member (Judicial) was nominated…

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