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TMI Blog2023 (10) TMI 1455X X X X Extracts X X X X X X X X Extracts X X X X ..... rity (National Company Law Tribunal, Hyderabad Bench) in I.A. No. 1547/2022 in C.P. (I.B.) No. 205/7/HDB/2021 by which I.A. No. 1547 of 2022 filed by the Financial Creditor (State Bank Of India) to take on record the rejoinder filed by it to the counter filed by the Corporate Debtor (India Power Corporation Limited) and condone the delay in filing of their rejoinder, if any, has been allowed but subject to the following observations "any additional factual assertions that were not pleaded in the main petition, if found to have been introduced under the Rejoinder, the same will not be taken into consideration and will be eschewed." 2. The first appeal is filed by the Corporate Debtor being aggrieved against the order by which the rejoinder has been taken on record and the second appeal has been filed by the Financial Creditor being aggrieved of the observation contained in the impugned order that "any additional factual assertions that were not pleaded in the main petition, if found to have been introduced under the Rejoinder filed on 16.03.2022 the same will not be taken into consideration and will be eschewed." 3. In brief, the Financial Creditor filed a petition bearing C.P. (I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the Ld. NCLT, Hyderabad. 9. On 16.12.2021, the Principal Bench, New Delhi passed the order that "in the meanwhile bench No. 1, NCLT, Hyderabad is requested to defer the hearing of the matter till the final order is passed in this application". 10. The Corporate Debtor filed Money Suit bearing M.S. No. 1 of 2022 before the Commercial Court, Alipore, Kolkata on 03.01.2022 in which, vide its order dated 24.01.2022, the Commercial Court, Alipore restricted lenders from initiating any recovery proceedings on the basis of deed of guarantee. The order of injunction dated 24.01.2022 was further expanded on 11.02.2022, the Commercial Court allowed I.A. No. 12 of 2022 and included 'any proceeding' instead of only recovery proceedings. The said order was challenged before the Hon'ble High Court at Kolkata. 11. It is pertinent to mention that in the order dated 22.04.2022, passed by the Principal Bench, New Delhi in the Transfer Petition it has been noted that "the petitioner/corporate debtor in the Section 7 Petition will cooperate for early disposal of the matter on merits and will not hinder/or delay the hearing of the matter under any circumstances". The Transfer Petition was ulti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thoroughly been dealt with by the Adjudicating Authority by specifically framing an issue and has referred to various provisions of the Rules which are reproduced as under:- "Rule 2 (19) "pleadings" means and includes application including interlocutory application, petition, appeal, revision, reply, rejoinder, statement, counter claim, additional statement supplementing the original application and reply statement under these rules and as may be permitted by the Tribunal; Rule 11. Inherent Powers.- Nothing in these rules shall be deemed to limit or otherwise affect the inherent powers of the Tribunal to make such orders as may be necessary for meeting the ends of justice or to prevent abuse of the process of the Tribunal. Rule 51. Power to regulate the procedure.- The Tribunal may regulate its own procedure in accordance with the rules of natural justice and equity, for the purpose of discharging its functions under the Act. Rule 55. Pleadings before the Tribunal.- No pleadings, subsequent to the reply, shall be presented except by the leave of the Tribunal upon such terms as the Tribunal may think fit. Rule 153. Enlargement of time.- Where any period is fixed by or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application is in the nature of 'Review' and as such this Tribunal has no power, shall fail invariably. (f) That apart, the emphatic submission of the Ld. Counsel for the respondent that, "the present application is simply not maintainable, since there exists a specific remedy under Rule 55 of the NCLT Rules, which provided for seeking leave of this Tribunal for filing pleading subsequent to the reply" also disentitles the respondent from contending that the applicant is per se, not maintainable, as but for invoking Rule 11 of NCLT Rules the application is maintainable under Rule 55 of NCLT Rules, even according to the respondent. 21. We, therefore, emphatically hold that the present application is not in the nature of 'Review Application', and as such this Tribunal has jurisdiction to decide and dispose of the present application on its merits. 22.Having already held in the preceding paras of our discussion, that invoking Rule 55 of NCLT Rules is obviated due to our suo motu order in the facts and circumstances of this case, we now refer to Rule 153 of NCLT Rules, supra, which provides for enlargement of time which is reproduced herein below: Rule 153: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e have heard Counsel for the parties in this regard and are of the considered opinion that when the Appellant/Petitioner sets up a case in the application filed either under Section 7, 9 or 10 of the Code then as per Rule 41 of the Rules, the Respondent shall specifically admit, deny or rebut the facts stated by the Applicant in his petition or application and state such additional facts as may be found necessary in his reply whereas it is provided in Rule 42 of the Rules that where the respondent states such additional facts as may be necessary for the just decision of the case, the Bench may allow the petitioner to file a rejoinder to the reply pertaining to those additional facts but it cannot set up a new case altogether which has not been set up by the Applicant in the main application as it would again require a reply by the Respondent and further rejoinder by the Applicant and the process will go and shall never come to end. 24. In any case, the petitioner cannot enlarge the scope of the petition by adding a new ground in the rejoinder, as the purpose of a rejoinder is not to fill in the gaps left by the petitioner in their pleadings. 25. Therefore, in such circumstances, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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