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TMI Blog2023 (4) TMI 1027X X X X Extracts X X X X X X X X Extracts X X X X ..... it is satisfied that the Corporate Debtor is delaying the proceeding. The loan was taken by the Corporate Debtor from DHFL against which insolvency resolution process was initiated and under the Resolution Plan the DHFL was taken over by the Piramal Capital Housing Finance Limited. In CIRP proceedings of DHFL, an I.A. was filed by the Corporate Debtor bringing subsequent facts after disbursement of Rs.10 Crores by DHFL. The Corporate Debtor s case and grievances regarding non-disbursement of balance amount and its adverse effect on the Corporate Debtor was highlighted in the application filed in the CIRP process of DHFL, which application is also part of the record in the present case. Admittedly, order passed by the Adjudicating Authority is exparte and Appellant could not get an opportunity to place its say and the facts and subsequent event after disbursement of loan of Rs.10 Crores could not be brought before the Adjudicating Authority for consideration. The ends of justice be served in allowing three days time to the Corporate Debtor to file reply before the Adjudicating Authority subject to payment of cost of Rs.1,00,000/- to the Financial Creditor - application dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Corporate Debtor to file a reply and fixed 03.01.2023 as the next date. v. On 03.01.2023, none appeared on behalf of the Corporate Debtor. The Adjudicating Authority proceeded ex-parte on 03.01.2023 and reserved for orders. vi. On 02.03.2023, orders has been pronounced admitting Section 7 application. 2. Learned counsel for the Appellant challenging the order contends that although the Corporate Debtor had appeared and taken time on 02.12.2022 and had instructed the counsel to file reply but the counsel for the Appellant neither appeared nor filed reply, due to which the Adjudicating Authority has proceeded ex-parte and passed the order. It is submitted that the Adjudicating Authority passed the order admitting Section 7 application observing that the Corporate Debtor having not filed the reply averments made in the petition has to be treated to be admitted. It is submitted that there were several materials which were required to be brought into the notice of the Court. The Corporate Debtor has been complaining against the Financial Creditor regarding non-disbursement of the loan due to which severe prejudice was caused. It is also contended that although Rs.10 Crores wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wing order was passed by the Adjudicating Authority: ORDER Mr. Aniket Kharote a/w. Ms. Soniya Putta and Ms. Rohini Hirwane i/b Solomon amp; Co. Advocate appearing for the Petitioner/ Financial Creditor is present through virtual hearing. The Corporate Debtor is present in person/ physically. Counsel appearing for the Corporate Debtor undertakes to file Vakalatnama and seeks time to file reply. Counsel for the Corporate Debtor is directed to file reply within two weeks' time by serving an advance copy to the other side failing which the right to file reply will stand forfeited. List this matter on 03.01.2023. 6. The next date, when the matter was listed was 03.01.2023 on which date following order was passed: ORDER Mr. Aniket Kharote a/w Ms. Soniya Putta and Ms. Rohini Hirwane i/b. Solomon Co., Advocates appearing for the Petitioner are present through virtual hearing. None appeared on behalf of the Corporate Debtor despite the undertaking was given on the previous occasion. Also, no reply has been filed by the Corporate Debtor. Thus, the Corporate Debtor is proceeded ex-parte. Heard the Counsel appearing for the Petitioner. Reserv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments made in the Petition, the same by necessary implication are deemed to have been admitted by the Corporate Debtor. Resultantly, it stands proves that there has been a debt and the Corporate Debtor has committed default in payment of the said Financial Debt, the Petition is otherwise within the period of limitation. 12. Therefore, in our considered view, it is a fit case for admission under Section 7, accordingly, the Petition is admitted in the following terms. 9. The Appellant has not denied that he has appeared on 02.12.2022 and has taken time to file reply and Appellant has given instructions to the counsel to file reply but the counsel failed to file reply on the next date and on the next date the Adjudicating Authority proceeded ex-parte and reserved the order. Learned counsel for the Appellant in support of his submission that it was not obligatory for the Adjudicating Authority to proceed ex-parte on 03.01.2023 and reserve the order and one more opportunity could have given to the Appellant, placed reliance on the judgment of this Tribunal in Company Appeal (AT) (Ins.) No. 434 of 2022, Ashok Tiwari vs. DBS Bank India Limited (DBIL) Anr. , in which case on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... non- appearance of Corporate Debtor on the next date of hearing, Adjudicating Authority is not to mechanically proceed to dispose of the Application ex-parte. When a Corporate Debtor, who does not appear on the date fixed, is entitled to a reasonable opportunity before proceeding ex-parte, a Corporate Debtor who appeared on the first date of hearing cannot be put to in worse position than a Corporate Debtor who does not appear. The NCLT Rules, 2016 namely Rule 34 as well as Rule 51 entitles the Tribunal to regulate its own procedure in accordance with the rules of natural justice. Rule 34 and Rule 51 are as follows: 34. General Procedure. - (1) In a situation not provided for in these rules, the Tribunal may, for reasons to be recorded in writing, determine the procedure in a particular case in accordance with the principles of natural justice. (2) The general heading in all proceedings before the Tribunal, in all advertisements and notices shall be in Form No. NCLT. 4. (3) Every petition or application or reference shall be filed in form as provided in Form No. NCLT. 1 with attachments thereto accompanied by Form No. NCLT.2 and in case of an interlocutory app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs. There was no lack of jurisdiction in the Adjudicating Authority to proceed exparte on 03.01.2023 when none appeared for the Corporate Debtor. 11. We may also notice the judgment of this Tribunal relied by learned counsel for the Respondent i.e. judgment in Company Appeal (AT) (CH) (Ins.) No. 446 of 2022, DCB Bank Limited vs. Mr. R. Sadasivsan Ors. . In the above case, the DCB Bank Limited has filed the appeal against order dated 03.03.2022 passed by the Adjudicating Authority, where the Adjudicating Authority has directed the bank to refund a sum of Rs.11,30,40,034/- to the Corporate Debtor s account. In the order dated 03.03.2022 the Bank was proceeded ex-parte. The submission of the Appellant before this Tribunal was that the Bank had failed to appear due to Covid-19 pandemic and non-appearance was neither wilful nor wanton. This Tribunal in the above case has held that the Bank was duly served notice on 17.07.2021 and 22.07.2021. This Tribunal has also noticed that after service of notice to the Bank matter was listed on seven times and order was passed on 03.03.2022. In Para 15 following observations were made: 15. At this stage, this Tribunal , on going through ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quent facts after disbursement of Rs.10 Crores by DHFL. The Corporate Debtor s case and grievances regarding non-disbursement of balance amount and its adverse effect on the Corporate Debtor was highlighted in the application filed in the CIRP process of DHFL, which application is also part of the record in the present case. Admittedly, order passed by the Adjudicating Authority is exparte and Appellant could not get an opportunity to place its say and the facts and subsequent event after disbursement of loan of Rs.10 Crores could not be brought before the Adjudicating Authority for consideration. The Appellant has undertaken to file reply within three days. 15. We, taking note of the overall facts and circumstance, are of the view that ends of justice be served in allowing three days time to the Corporate Debtor to file reply before the Adjudicating Authority subject to payment of cost of Rs.1,00,000/- (Rupees One Lakh only) to the Financial Creditor. In result, we set aside order dated 02.03.2023 and grant three working days time to the Corporate Debtor to file reply before the Adjudicating Authority. Company Petition CP (IB) No. 1136(MB)2022 is revived before the Adjudicati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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