2022 (5) TMI 1495 - AT - Insolvency and Bankruptcy

Seeking grant of some time to file vakalatnama and reply - respondent submitted that Learned Counsel for the Corporate Debtor did not have the Vakalatnama, hence, the Court did not record his appearance - HELD THAT - The present is the case where the counsel appeared and made a request for filing Vakalatnama and Reply. Learned Adjudicating Authority has simply observed in paragraph 9 that despite notice was served, no one has appeared. There are no reasons to disbelieve the Affidavit filed by the Counsel in this Appeal, that he appeared and made a request to file the Vakalatnama and Reply. At least one opportunity ought to have been given to the Respondent to file his Reply. The Order dated 17.02.2022 being virtually Ex-Parte deserve to be set aside. The Corporate Debtor is allowed one week time from today to file its 'Reply' before the Learned Adjudicating Authority and the Financial Creditor may also file their Rejoinder within two weeks, thereafter. Further, with regard to the amount deposited by the Financial Creditor in pursuance of the Para-16 of the impugned order Learned Adjudicating Authority shall pass appropriate Order in the pending proceedings. Learned Counsel for the Parties are at liberty to make an Application for fixing a date after three weeks before the Learned Adjudicating Authority. Appeal disposed off.

Summary

Issues:
Admission of Section 7 Application without proper response from the corporate debtor.

Analysis:
The appeal was filed against the order passed by the Adjudicating Authority admitting the Section 7 Application filed by the Financial Creditor. The Adjudicating Authority had issued a notice to the Corporate Debtor, but despite the notice being served, the Corporate Debtor did not appear or file a reply objecting to the petition. The appeal was brought by the Suspended Director of the Corporate Debtor, arguing that the request for time to file necessary documents was not considered, and the order was reserved and subsequently uploaded without proper consideration.

The Respondent's counsel contended that the Corporate Debtor had 56 days to file a reply but failed to do so. The counsel also mentioned that due to not having the necessary documents, the court did not record his appearance. An affidavit was filed by the counsel who appeared before the Adjudicating Authority, stating that a request for time to file documents was denied, and the order was reserved without hearing the parties on merits.

The Appellate Tribunal found that the Corporate Debtor should have been given an opportunity to file a reply before the order was passed. The Tribunal noted that the order was virtually ex-parte and deserved to be set aside. The Corporate Debtor was granted one week to file its reply, and the Financial Creditor was allowed to file a rejoinder within two weeks thereafter. The Tribunal clarified that no opinion on the merits of the case was expressed.

Regarding the amount deposited by the Financial Creditor, the Adjudicating Authority was directed to pass an appropriate order in the pending proceedings. The parties were given liberty to apply for fixing a date after three weeks before the Adjudicating Authority. Additionally, the Appellant's counsel was directed to pay a cost of Rs. 10,000 to the Financial Creditor within one week. The appeal was ultimately disposed of by the Tribunal.