2019 (7) TMI 2016 - AT - Insolvency and Bankruptcy

Seeking restoration of petition u/s 9 of the Insolvency Bankruptcy Code, 2016 - Appellant (Corporate Debtor) submitted that the Adjudicating Authority (National Company Law Tribunal) (NCLT), Kolkata Bench has no jurisdiction to recall its earlier order having no power of review or to recall - HELD THAT - The Adjudicating Authority, Kolkata Bench in exercise of power conferred by Rule 11 of the NCLT Rules, 2016 having restored the petition u/s 9 to its original file, there are no illegality in the impugned order. In so far hearing of the Appellant Amrit Feeds Limited (Corporate Debtor) is concerned, the petition having restored, the Appellant Amrit Feeds Limited (Corporate Debtor) will be given notice by the Adjudicating Authority before passing any order in the application u/s 9 preferred by S.S. Enterprises(Operational Creditor). There are no reason to interfere with the impugned order. The appeal is accordingly dismissed.

Summary

Issues:
1. Jurisdiction of the Adjudicating Authority to recall its earlier order.
2. Requirement of issuing a fresh Demand Notice before filing a fresh application under the Insolvency & Bankruptcy Code.
3. Necessity of notice and hearing for the Corporate Debtor before restoration of the application.

Analysis:
1. The Appellant challenged the order restoring a petition under section 9 of the Insolvency & Bankruptcy Code filed by the Operational Creditor. The Adjudicating Authority, Kolkata Bench, had directed the Operational Creditor to file its claim before the Interim Resolution Professional, disposing of the initial application due to the initiation of the Corporate Insolvency Resolution Process against the Corporate Debtor by another party.

2. The Appellant contended that the Adjudicating Authority lacked jurisdiction to recall its previous order and argued that a fresh Demand Notice should have been issued under section 8(1) before filing a new application under the Code. However, the Respondent had indeed issued a Demand Notice under section 8(1) before initiating the proceedings against the Corporate Debtor.

3. The Adjudicating Authority restored the petition under section 9 to its original file, citing Rule 11 of the NCLT Rules, 2016. The Authority also ensured that the Corporate Debtor would be given notice before any order is passed in the application by the Operational Creditor. The Tribunal found no illegality in the impugned order and dismissed the appeal, emphasizing the importance of following due process and providing notice to all concerned parties.

This detailed analysis covers the jurisdictional aspect, the requirement of a fresh Demand Notice, and the necessity of notice and hearing for the Corporate Debtor, providing a comprehensive understanding of the judgment.