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TMI Blog2024 (1) TMI 253X X X X Extracts X X X X X X X X Extracts X X X X ..... to be present. The relevant fact to be noticed is that the Appellant was well aware of the date 12.05.2023. On 12.05.2023, according to the Appellant himself, the case could not be taken up due to paucity of time and next date was fixed. The Appellant s case is that his Counsel wrongly noted the date as 08.06.2023 instead of 07.06.2023, hence, on 07.06.2023, he could not appear and the order was passed ex-parte against him - When a party appears on a date which is fixed before the Court, it is presumed that the party is well aware of the proceedings, which was taken up by the Court on the said date. On 12.05.2023, the next date fixed was 07.06.2023. In the present case, the Appellant is not denying that he was not served with the copy of the IA No.2121 of 2023, nor he denies the service of copy of Application. The fact remains that he did not file reply within the time allowed and also did not appear on 07.06.2023, when the case was taken up - the Adjudicating Authority did not commit any error in rejecting IA No.3216 of 2023. The Adjudicating Authority being satisfied that no sufficient cause has been shown for nonappearance passed the impugned order dated 12.12.2023. There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 under Rule 11 of the NCLT Rules, 2016 praying for removal of Appellant as the RP of the Corporate Debtor. In IA No.2121 of 2023 an order was passed by Adjudicating Authority on 25.04.2023 issuing notice and asking the RP to file a reply within 10 days. The next date fixed was 12.05.2023. On 02.05.2023, the Appellant claimed to have received a notice from Counsel for Respondent No.1 informing that IA No.2121 of 2023 was listed on 25.04.2023, where the Adjudicating Authority has directed to issue notice. It is stated that notice mentioned the next date as 03.05.2023. On 03.05.2023, the case was not listed, however, Appellant being aware that 12.05.2023 is fixed, appeared before the Adjudicating Authority through his Counsel, but due to paucity of time, the case could not be taken up. (v) The case of the Appellant is that the Counsel of the Appellant noted next date as 08.06.2023 and when the case was not shown on 08.06.2023, he enquired and came to know that order has been passed on 07.06.2023 allowing IA No.2121 of 2023. (vi) The Appellant filed IA No.3216 of 2023 on 08.06.2023 for recall of the order dated 07.06.2023, which was dismissed by order dated 12.12.2023. Aggrieved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 49, is not an order passed under Part II, hence, the order is not appealable under Section 61, sub-section (1) of the Code. It is submitted that the Appellant does not have any vested right to continue as RP of the Corporate Debtor. 6. We have considered the submissions of learned Counsel for the parties and have perused the record. 7. The IA No.2121 of 2023 was filed by the Financial Creditor (Respondent No.1) seeking removal of the Appellant as RP. Copy of the Application has been brought on record by the Appellant at page 67 of the Appeal paper book. The Appellant has stated in the Application that the Financial Creditor/ Respondent No.1 has sent an email dated 10.08.2021 to RP to convene the Meeting and again on 18.10.2021, a request was made to convene the Meeting of the CoC. Another Financial Creditor Karnataka Bank has also sent an email dated 10.08.2021 for convening a meeting, which was replied by the RP on 11.08.2021. The reply of the RP has been quoted in paragraph 14 of the Application, which is to the following effect: 14. The R.P. in its response dated 11.08.2021 to the communications dated 10.08.2021 issued by Karnataka Bank, one of the members of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f such Respondent satisfies the Tribunal that the notice was not duly served, or that he or they were prevented by any sufficient cause from appearing, the Tribunal may make an order setting aside the ex-parte hearing against him or them, upon such terms as it thinks fit. Although, submissions have been advanced by the Respondent that no Application could have been filed for recall of the order dated 07.06.2023, by which order Adjudicating Authority proceeded ex-parte against the Appellant and passed the order of removal, for the purpose of this case, we need not enter into the said issue and the further submission of the Respondent that Appeal against the order dated 12.12.2023 is not maintainable needs no consideration in facts of the present case. 11. When we look into Rule 49, sub-rule (2), it is clear that ex-parte order can be recalled on two grounds, firstly, when notice was not served or that the Respondent/ Applicant was prevented by any sufficient cause from appearing when the Application was called for hearing. The Adjudicating Authority in the impugned order, rejected the Recall Application holding that no sufficient case was shown for exercising the power under Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... licant through its counsel diligently ensured to keep track of the order dated 25.04.2023 passed by this Hon ble Tribunal. The Applicant came to know the said application filed by Respondent is listed for hearing on 12.05.2023. The Applicant through its counsel ensured that that the Applicant enters appearance through video-conferencing. On 12.05.02023, the application filed by Respondent was unable to be taken by the Hon ble Tribunal and adjourned by this Hon ble Tribunal due to paucity of time. Despite the Applicant s counsel attending the hearing in the said matter through video-conferencing and entering attendance in the chat box of the video conferencing app, the attendance of Applicant s counsel was not recorded in the order dated 12.05.2023. It is pertinent to note that the Applicant s counsel had at that day noted the next date of hearing as 08.06.2023. A screenshot of the matter diary of counsel of the Applicant is marked and annexed as ANNEXURE 3. 15. From the above, it is clear that the Appellant was well aware that case was listed for hearing on 12.05.2023 and he entered appearance through Counsel, who inspite of entering his attendance in chat box, is not s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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