2022 (6) TMI 208 - Tri - Insolvency and Bankruptcy

Maintainability of present application - Setting aside and recall of order dated 23.11.2020 and 01.12.2020 u/r 49 r/w rule 11 of NCLT rules, 2016 - HELD THAT - It is pertinent to discuss that Rule 49(2) of NCLT Rules, 2016 only provides that this Tribunal may set aside the order of ex-parte passed against the respondent, however, neither Rule 49(2) nor any other rule of NCLT Rules, 2016 provides that this Tribunal is empowered to recall its final order and review the same. The relief sought by the applicant is not only with respect to set aside of ex-parte order dated 23.11.2020 but also recall of order dated 01.12.2020, which this Tribunal is not empowered to do. Hence, this Tribunal is inclined to dismiss the present application in view of the above facts and circumstances. Application dismissed.

Summary

Issues:
Application for setting aside and recall of orders dated 23.11.2020 and 01.12.2020 under NCLT rules, 2016.

Analysis:
The Applicants filed an application seeking to set aside and recall orders dated 23.11.2020 and 01.12.2020 under Rule 49 r/w rule 11 of NCLT rules, 2016. The contention was based on the alleged non-cooperation by the Applicant and Respondent No. 2, which led to adverse orders being reserved by the Tribunal. The Applicants argued that they had been cooperating and providing necessary documentation to Respondent No. 1, despite challenges such as Respondent No. 2 being Covid-positive and hospitalized. The Applicants also highlighted efforts made to comply with document requests post the impugned orders. They requested the orders be recalled to present their arguments.

The respondent resolution professional opposed the application, questioning its maintainability and defending the Tribunal's previous orders. They argued that the Applicants failed to extend cooperation as required by the Code and did not provide sufficient cause for non-appearance as per NCLT Rules. The respondent also clarified that a different application, IA-3091 of 2020, was reserved, not the one in question, IA-4385 of 2020.

After considering the arguments and perusing the application and reply, the Tribunal noted that while Rule 49(2) of NCLT Rules, 2016 allows setting aside ex-parte orders, it does not empower the Tribunal to recall final orders. The Tribunal had proceeded ex-parte against the Applicant in IA-3091/2020 and disposed of the same, which the Applicants sought to set aside and recall. As the Tribunal lacked the authority to recall final orders, the application was dismissed. Consequently, IA-128/2020 in IB-614/ND/2017 was also dismissed. The order was pronounced through virtual mode.