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TMI Blog2022 (3) TMI 579X X X X Extracts X X X X X X X X Extracts X X X X ..... d on the Adjudicating Authority under Rule 49, sub-rule (2). When power is specifically conferred under the Rule, there was no question of exercising any review jurisdiction in the facts of the present case. The Adjudicating Authority was fully competent to recall ex-parte order in exercise of its jurisdiction under Rule 49, sub-rule (2). This Tribunal was not called to consider the case for recall of ex-parte order, which was passed without service of notice on the Corporate Debtor. In the present case, the Adjudicating Authority has not rejected the Application of the Corporate Debtor on the ground that it has been passed after constitution of CoC. In the facts of the present case, the Appellant has clearly pleaded that although admission order under Section 9 was passed on 10th April, 2019, but CoC was constituted only in March 2021 that is much after filing of CA 405 of 2019 - the present is a case where Application to recall of order was filed much before the constitution of CoC. The amount having withdrawn by the Directors to their accounts, from the account of the Corporate Debtor, the Directors may deposit back the said amount into the account of the Corporate Debtor. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th January, 2019, but the Corporate Debtor did not appear. An affidavit of service was filed by the Operational Creditor before the Adjudicating Authority dated 6th February, 2019 wherein it was mentioned that notices issued by Registered Post as well as Speed Post have not been delivered and returned with the endorsement Addressee left without instruction , whereas email sent to the Corporate Debtor on email IDs as provided in the Ministry of Corporate Affairs data base was sent. The Adjudicating Authority after the receipt of the affidavit of service held that notices are served and directed to proceed ex-parte against the Corporate Debtor by its order dated 8th February, 2019. The Application under Section 9 was taken up for ex-parte hearing and by order dated 10th April, 2019 it was admitted. (v) After admission of Section 9 Application, the Director of the Appellant received an email dated 03.05.2019 on its personal email ID from one Shri Vimal Grover claiming to be Interim Resolution Professional (IRP). The Appellant after coming to know about the initiation of Corporate Insolvency Resolution Process (CIRP) against the Corporate Debtor filed an Application on 10th June, 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omain services, which was being provided by the service provider had informed the Corporate Debtor on 27th July, 2018 that official domain and email services are going to expire and by the end of September 2018, email services provided by the third-party service provider expired hence, no email could be received by the Appellant at email domain service. The learned Counsel was well aware of the personal email IDs of the Directors and notices were deliberately sent to the domain email IDs, which were not in use by the Corporate Debtor. 5. The learned Counsel for the Appellant further submits that as soon as the order dated 10th April, 2019 was passed, the Director of the Appellant received an email on his person email ID on 3rd May, 2019 from one Shri Vimal Grover claiming to be IRP. Several emails after the aforesaid date have also been sent by Operational Creditor on the personal email IDs of the Directors. It is further submitted that the service provider, who was providing domain service informed regarding expiry of the domain service, which having not been renewed in September, 2019, the emails claiming to be sent by Operational Creditor on the registered email IDs were not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10th April, 2019 qua the Corporate Debtor. The Application was filed by the Appellant on the ground that notices issued in Section 9 Application were not served on the Corporate Debtor nor Demand Notice under Section 8 was served on the Corporate Debtor and order dated 8th February, 2019 passed by the Adjudicating Authority to proceed ex-parte was an order without service of notice on the Corporate Debtor and hence deserves to be recalled. We may first notice the certain averments, which was made in the Application being IA No.405 of 2019 by the Appellant. In paragraphs 9, 13, 14, 16 and 17 are the pleadings of the Corporate Debtor in his Application to recall the ex-parte order, which are to the following effect: 9. That along with the above, the Corporate Debtor had also taken a management decision to shift its registered office from Janakpuri to Naraina, pursuant to a resolution of the Board of Directors. Copy of the Board Resolution dated September 20, 2018 along with copy of Form INC-22 attesting to change of registered office by the Corporate Debtor is annexed herewith and marked as Annexure 2. It is stated that the determination to change the registered office was pas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 49. Ex-parte Hearing and disposal.- (1) Where on the date fixed for hearing the petition or application or on any other date to which such hearing may be adjourned, the applicant appears and the respondent does not appear when the petition or the application is called for hearing, the Tribunal may adjourn the hearing or hear and decide the petition or the application ex-parte. (2) Where a petition or an application has been heard ex-parte against a respondent or respondents, such respondent or respondents may apply to the Tribunal for an order to set it aside and if such respondent or respondents satisfies the Tribunal that the notice was not duly served, or that he or they were prevented by any sufficient cause from appearing (when the petition or the application was called) for hearing, the Tribunal may make an order setting aside the ex-parte hearing as against him or them upon such terms as it thinks fit. Provided that where the ex-parte hearing of the petition or application is of such nature that it cannot be set aside as against one respondent only, it may be set aside as against all or any of the other respondents also. 10. We may further notice that in orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any notice. In the order which was passed on 10th April, 2019, admitting Section 9 Application, the Adjudicating Authority itself has noticed in paragraph 11 that notices sent by Speed Post have been received back unserved. Paragraph 11 of the order is as follows: 11. It is seen from the order dated 08.02.2019 of this tribunal that as per the affidavit filed by the petitioner, steps for service were taken vide e-mail at the e-mail id of the Corporate Debtor registered with the MCA, which has not bounced. This is an adequate service. Steps were also taken to serve the Corporate Debtor through its Directors vide Speed Post but these have been received back unserved. However none appeared on the behalf of Corporate Debtor and the Corporate Debtor was proceeded ex-parte. 12. The present is a case where Corporate Debtor was asking for recall of the order dated 8th February, 2019 and 10th April, 2019. Both the orders were passed ex-parte and no notices were served. The Adjudicating Authority committed error in holding that the Appellant was asking for review of the admission order. In the impugned judgment dated 30 th November, 2021, learned Adjudicating Authority have relie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . As far as power to recall an order is concerned, it is nothing but a procedural review which can be availed only if there is any procedural defect in passing the order or the order has been obtained by playing fraud in any manner. 14. In the second part of the observation, it was clearly mentioned that the procedural review can very well be availed, if there is any procedural defect in passing the order. The present was a case where there was procedural defect, since service was not effected on the Corporate Debtor. Thus, the judgment of the Allahabad High Court, which has been relied by the Adjudicating Authority for non-suiting the Corporate Debtor also does not support the view taken by the Adjudicating Authority. In view of the foregoing, we arrive at a conclusion that orders dated 8th February, 2019 as well as 10th April, 2019 were passed without service of any notice on the Corporate Debtor and both the orders being ex-parte, deserve to be set aside by the Adjudicating Authority by exercising the power under Rule 49, sub-rule (2). 15. The learned Counsel for the Respondent has relied on judgment of this Tribunal in Company Appeal (AT) (Ins.) No.362 of 2021 in S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lvency Resolution Process for Corporate Persons) Regulations, 2016 (hereinafter referred to as CIRP Regulations 2016) where this Tribunal held that before constitution of CoC, if Adjudicating Authority is satisfied that notice was not duly served on the Corporate Debtor, the Adjudicating Authority can make an order for setting aside ex-parte order. The learned Counsel for the Respondent has placed reliance on the observation of this Tribunal in paragraph 20 that after constitution of CoC, the Adjudicating Authority cannot set-aside even ex-parte order and in such situation the Corporate Debtor has to file an Appeal under Section 61 of the Code. We are of the view that observations of this Tribunal in the above case have to be confined to consideration pertaining to Section 12A of the Code and 30A of the CIRP Regulations 2016. This Tribunal was not called to consider the case for recall of ex-parte order, which was passed without service of notice on the Corporate Debtor. In the present case, the Adjudicating Authority has not rejected the Application of the Corporate Debtor on the ground that it has been passed after constitution of CoC. In the facts of the present case, the Appel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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