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2019 (7) TMI 1630 - AT - Insolvency and BankruptcyMaintainability of petition - Review/recall of order - only plea taken by the Appellant is that the Corporate Debtor had not received the notice as there was a dispute between the landlord of premises with the Corporate Debtor - HELD THAT - We asked learned counsel for the Appellant to address this Appellate Tribunal as to what stand the Corporate Debtor could have taken before the Adjudicating Authority prior to admission of the application under Section 7 of the I B Code. However, pursuant to the said question it is accepted that there is debt and default and the Corporate Debtor is not in a position to settle the claim. In that view of the matter, any opportunity to the Corporate Debtor will be a futile exercise and we are not inclined to interfere with the impugned order dated 7th June, 2019. This is not a fit case to impose costs on the Corporate Debtor having taken over by the Interim Resolution Professional. The part of the impugned order dated 7th June, 2019 imposing cost of ₹ 25,000/- is set aside. The rest part of the impugned order is affirmed - appeal disposed off.
Issues:
Application under Section 7 of the Insolvency and Bankruptcy Code, 2016; Review or recall of the order dated 8th March, 2019; Power of review by the Adjudicating Authority; Interpretation of Section 420(2) of the Companies Act, 2013; Principles of natural justice under Section 424 of the Companies Act, 2013; Necessity of limited notice to the Corporate Debtor; Acceptance of debt and default by the Corporate Debtor; Imposition of costs on the Corporate Debtor. Analysis: The Appellate Tribunal considered an application filed by DCB Bank Limited, a Financial Creditor, under Section 7 of the Insolvency and Bankruptcy Code, 2016 against M/s. Fort Biotech Private Limited, a Corporate Debtor. Despite the Corporate Debtor's claim of not receiving notice due to a dispute with the landlord, the Adjudicating Authority held that it lacked the power to review or recall the order dated 8th March, 2019 under Rule 11 of the National Company Law Tribunal Rules, 2016. The Tribunal examined Section 420(2) of the Companies Act, 2013, which allows rectification of orders within two years to correct any apparent mistakes. It emphasized that without any mistake evident from the record, the Adjudicating Authority couldn't utilize this provision. Moreover, the Tribunal highlighted the importance of following principles of natural justice as mandated by Section 424 of the Companies Act, 2013. Referring to a previous judgment, the Tribunal reiterated the necessity of issuing limited notice to the Corporate Debtor before passing any order under Section 7 of the Insolvency and Bankruptcy Code. Despite the notice being served to the Corporate Debtor, their non-appearance led the Adjudicating Authority to pass the order on merit on 8th March, 2019. The Appellate Tribunal, after considering the Corporate Debtor's plea of not receiving notice, concluded that the debt and default were established, and the Corporate Debtor couldn't settle the claim. Therefore, it declined to interfere with the order dated 7th June, 2019. However, in a fair assessment, the Tribunal decided not to impose costs on the Corporate Debtor, which was under the control of the Interim Resolution Professional. It set aside the cost imposed in the impugned order but affirmed the rest of the order. In conclusion, the appeal was disposed of, with the Tribunal providing a detailed analysis of the issues surrounding the application under the Insolvency and Bankruptcy Code, the power of review by the Adjudicating Authority, interpretation of relevant sections of the Companies Act, and the principles of natural justice that guide such proceedings.
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