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TMI Blog2023 (9) TMI 83X X X X Extracts X X X X X X X X Extracts X X X X ..... ion to Adjudicating Authority) Rules, 2016 (in short 'Rules') by Indian Overseas Bank (Financial Creditor) against M/s Utopian Sugars Limited (Corporate Debtor) for the resolution of an aggregate amount of Rs. 23,16,19,975/- which includes principal amount of Rs. 17,81,96,000/- and interest of Rs. 5,34,23,975/-. Moratorium was declared and Ritesh R. Mahajan was appointed as the Interim Resolution Professional (in short 'IRP'). 2. In brief, notice in the application was issued by the Adjudicating Authority on 11.10.2022. At that time, the following order was passed :- "NATIONAL COMPANY LAW TRIBUNAL MUMBAI BENCH, COURTII 1. C.P.(IB)-1083(MB)/2022 CORAM: SHRI SHYAM BABU GAUTAM JUSTICE P. N. DESHMUKH (Retd.) HON'BLE MEMBER (T) HON'BLE MEMBER (J) ORDER SHEET OF THE HEARING OF MUMBAI BENCH OF THE NATIONAL COMPANY LAW TRIBUNAL ON 11.10.2022 NAME OF THE PARTIES: - Indian Overseas Bank V/s Utopian Sugars Limited APPEARANCES: - FOR FINANCIAL CREDITOR: Adv. Mr. Prakhar Tandon FOR CORPORATE DEBTOR: Absent Section: 7 of Insolvency and Bankruptcy Code, 2016 ORDER The matter is taken up through Virtual Hearing (VC). Registry is directed to issue notice to the Corp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... various opportunities granted to the Corporate Debtor by this Bench, the Corporate Debtor has failed to remain present even today. The Order Sheet dated 11.10.2022 reads that the Registry as well as Financial Creditor were directed to issue notice to the Corporate Debtor intimating the next date of hearing by all available means i.e. Speed Post, Email, etc. and place on record the Affidavit of service enclosing therein the proof of service well before the adjourned date. On 17.10.2022 Registry issued Court Notice and compliance report is also on record. Even after service upon the Corporate Debtor by the Registry as well as Counsel, appearing for the Financial Creditor the Corporate Debtor has neither filed Reply nor has caused appearance. Consequently, this Bench has no option except to hear the Arguments of the Counsel for the Financial Creditor. Heard the submissions of the Counsel appearing for the Financial Creditor for a considerable time. Reserved for Orders." 6. The order reserved on 21.11.2022, was pronounced on 16.12.2022. The relevant paragraph in regard to the findings is Para 7 of the impugned order which is reproduced as under:- "We have heard the submissions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te Debtor. However, in the column of appearance, absence of the Corporate Debtor was recorded though by that time the Corporate Debtor could not have been present because the notice was itself issued on 11.10.2022 and on 11.10.2022 the case was adjourned to 07.11.2022 and on 07.11.2022, the Adjudicating Authority recorded that no one appeared on behalf of the Corporate Debtor but at the same time it asked the Financial Creditor to file an affidavit of service for which one week time was granted. It is submitted that till that time the Adjudicating Authority was not sure about the service of the Corporate Debtor and therefore, the affidavit by the Financial Creditor was asked to be filed. The affidavit of service was to be filed by 14.11.2022 but the affidavit was attested by the Financial Creditor on 18.11.2022. It is further submitted that it is recorded on the next date i.e. 21.11.2022 that the Corporate Debtor was absent but Counsel appearing on behalf of the Financial Creditor made a submission that the Corporate Debtor is not appearing despite various opportunities granted by the Adjudicating Authority and the order was reserved on the same day. It is argued that ultimately in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed by the Adjudicating Authority is ex-parte order. The Adjudicating Authority in its order observed that the Corporate Debtor failed to appear on multiple occasions whereas after issuance of notice 07.11.2022 was the first date on which date the Financial Creditor was granted time to file affidavit of service. Thereafter on the next date on 21.11.2022 the order was reserved. Submissions needs scrutiny. Issue Notice. Let reply be filed within two weeks. Rejoinder be filed within two weeks. In the meantime the order dated 16.12.2022 shall remain stayed. List this matter on 31.01.2023. Learned Counsel for the Appellant submits that the Corporate Debtor shall not be alienating any assets." 3. Thereafter, the parties entered into an out of court settlement. The Appellant has undertaken to pay the amount of settlement to the Respondent (Financial Creditor) in tranches and the last payment has to be made on 31.03.2023. 4. Counsel for the Respondent Bank has submitted that so far part payment has been received but as per the settlement between the parties, the concerned Branch of the Bank will not withdraw the legal cases, DRT Cases until and unless full amount of se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C is concerned that can also be taken care of in the legal proceedings already pending, initiated at the instance of the Financial Creditor. In support of his submissions, Counsel for the Appellant has relied upon the following decisions of this Tribunal in the case of Bhagwandas R. Bhattad Vs. Bhattad Brother Realty Pvt. Ltd. CA (AT) (Ins) No. 95 of 2022, Vishwajeet Subhash Jhavar Vs. IDFC First Bank Limited & Anr. CA (AT) (Ins) No. 08 of 2023 and Jogendra Kumar Arora Vs. Dharmender Sharma & Anr. I.A. No. 312 & 336 of 2019 in CA (AT) (Ins.) No. 94 & 95 of 2019. 15. We have heard Counsel for the parties and perused the record with their able assistance. 16. As we have given the facts in the earlier part of this order about the manner in which the ex-parte proceedings have been carried out by the Adjudicating Authority against the Corporate Debtor making observation in the impugned order that the Corporate Debtor failed to appear on multiple occasion despite notice. This fact is not borne out from the record because the notice for the first time was issued by the Adjudicating Authority on 11.10.2022 (order Supra) for 07.11.2022 (order Supra) and on 07.11.2022, the case was adjourn ..... X X X X Extracts X X X X X X X X Extracts X X X X
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