2019 (7) TMI 1626 - Tri - Insolvency and Bankruptcy

Recall of Order - Corporate Debtor had not turned up on that day and no reply affidavit so far is seen filed, though opportunity to file the same was given to the applicant/Corporate Debtor - HELD THAT - Being not satisfied with the reason advanced by the Ld. Counsel for non-appearance we are not inclined to allow this application upon the ground alleged. However, in the interest of justice and to decide the matter on merits, the applicant is allowed to file reply affidavit subject to payment of cost of ₹ 10,000/- to be payable to the Financial Creditor within 7 days from today to compensate the inconvenience, if any, caused to the Financial Creditor. If the applicant fails to pay the cost as directed above, then opportunity to file reply affidavit shall stand closed. List it for further consideration on 13/08/2019.

Summary

Issues:
- Application for recalling of order dated 02/04/2019 due to non-appearance of Corporate Debtor
- Alleged reason for non-appearance being the Advocate-on-Record suffering from high fever
- Decision on allowing the Corporate Debtor to file a reply affidavit subject to payment of cost
- Consequences if the cost is not paid within the stipulated time

Analysis:
The judgment by the National Company Law Tribunal, Kolkata, involved an application by the Corporate Debtor for recalling an order due to their non-appearance on the specified date. The Corporate Debtor cited the reason for non-appearance as the Advocate-on-Record suffering from high fever. However, the Tribunal noted that no affidavit was submitted to substantiate this claim, leading to skepticism regarding the reason provided. Consequently, the Tribunal was disinclined to allow the application solely based on the grounds alleged.

In the interest of justice and to ensure a decision on the merits of the case, the Tribunal decided to permit the Corporate Debtor to file a reply affidavit. However, this allowance was subject to a condition - the payment of a cost amounting to ?10,000 to be paid to the Financial Creditor within 7 days. This cost was intended to compensate any inconvenience caused to the Financial Creditor due to the non-appearance of the Corporate Debtor. It was explicitly stated that failure to pay the specified cost within the stipulated timeframe would result in the closure of the opportunity to file the reply affidavit.

Furthermore, the judgment outlined the procedural steps to be followed post the payment of the cost. Upon the payment of the cost, the Corporate Debtor was required to file the reply affidavit along with the Memo of Cost within 7 days from the date of payment. Subsequently, the Financial Creditor was directed to file a rejoinder within 7 days of receiving the reply affidavit, with the mandate to serve a copy of the rejoinder to the Corporate Debtor. The case was listed for further consideration on 13/08/2019, indicating the Tribunal's intent to progress the matter expeditiously and efficiently.