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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 ..... ining 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. 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. There are no merit in this appeal as well filed by State Bank of India and the same is hereby dismissed. - JUSTICE RAKESH KUMAR JAIN, MEMBER (JUDICIAL) AND SHREESHA MERLA, MEMBER (TECHNICAL) For the Appellant : Mr. P.H. Arvind Pandiyan, Sr., Adv, Mr. R. Sankaranarayanan, Sr.Adv For the Respondent : Mr. R. Sankaranarayanan, Sr., Adv, Mr. P.H. Arvind Pandiyan, Sr. Adv JUDGMENT Per: Justice Rakesh Kumar Jain: This order shall dispose of two appeals i.e. CA (AT) (Ins) No. 69 of 2023 titled as India Power Corporation Limited Vs. State Bank of India (hereinafter referred as first appeal ) and CA (AT) (Ins) No. 87 of 2023 titled as State Bank of India Vs. India Power Corporation Limited (hereinafter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing deferment of the hearing of Section 7 application till the Hon ble Supreme Court decide the Civil Appeal No. 3307 of 2020 and Civil Appeal No. 3309 of 2020. This I.A. is stated to be pending. 6. The Adjudicating Authority passed the following order on 15.11.2021 which is as under:- The applicant is directed to file counter alongwith documents, if any, by 23.11.2021 and shall serve copy of the same to the financial creditor. In default, the opportunity to file counter stands forfeited. The rejoinder, if any, to the same shall be filed by the financial creditor within 7 days thereafter. 7. On 03.12.2021, the Adjudicating Authority granted two weeks time to Financial Creditor to file the rejoinder to the reply filed by Corporate Debtor. The order read as under: - At request of the learned counsel for financial creditor, two weeks time is granted for filing rejoinder, lest opportunity stands closed 8. The period of two weeks expired on 21.12.2021, however, on 14.12.2021, the Corporate Debtor filed an application TP (IBC)-81 (PB)/2021 before the Principal Bench, New Delhi for transfer/assignment of Section 7 Petition to NCLT, Kolkata inter alia, on the ground that the atmosphere sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich reply was filed by the Corporate Debtor on 30.12.2022. This application has ultimately has been allowed by the impugned order on 30.01.2023 by which the rejoinder has been taken on record but at the same time an observation has been made which is allegedly against the interest of the Financial Creditor. Hence, both the parties have filed their respective appeals. 14. While arguing the first appeal, Counsel for the Appellant for India Power Corporation Limited has submitted that the application per se is not maintainable after the closer of the opportunity to file the rejoinder. It is also submitted that as per Rule 55 of the Rules no pleadings, subsequent to the reply, is permissible except by the leave of the Tribunal. 15. On the other hand, Counsel for the Respondent has submitted that contention of the Appellant that the rejoinder should have been filed under Rule 55 of the Rules is mis-leading because Rule 55 of the Rules provides for seeking leave of the Tribunal whereas in the present case, exercising powers under Rule 42 of the Rules, the Adjudicating Authority vide order dated 03.12.2021 had already suo motu given leave to the Respondent to file the rejoinder. 16. We ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... while passing the impugned order dated 03/12/2022. (b) Prior to the same, this Tribunal Suo motu' granted opportunity, to file rejoinder vide order dated 24.09.2021 within a time frame. (c) The respondent has not even opposed either the 'Suo motu' order or the order extending time to the applicant to file the Rejoinder. (d) Hon'ble NCLAT, in re, Printland Digital (India) Pvt. Ltd, supra, explained the deference between Review and the recall of its own order by this Tribunal, as below: if there is an adjudication by the Adjudicating Authority on merits of the issues then it would not have the jurisdiction to review its order but insofar as the dispute with regard to right to file the Reply which is closed by an order, it certainly has the jurisdiction to recall it in terms of the Rule 11 of NCLT Rules, 2016. In view of the aforesaid discussions, we therefore, allow this appeal and remand the case back to the Adjudicating Authority to consider the application on merits and decide the same in accordance with law. (e) So much so, when the basic ingredient of 'Review', namely, an adjudication by the Adjudicating Authority on merits of the issues , it self is lack ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r filed on 16.03.2022 the same will not be taken into consideration and will be eschewed. . In this regard, he has argued that Rule 42 of the Rules which deals with filing of the rejoinder says 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 filed by the respondent, with an advance copy to be served upon the respondent. He has also relied upon various decisions of the High Court in which it has been held that whenever a new plea is introduced by the defendant in the written statement, contingency of filing the rejoinder arises clarifying their position. 22. On the other hand, Counsel for the Respondent has submitted that Rule 41 and 42 of the Rules deals with the filing of reply and rejoinder. It is submitted that in Rule 41 it has been specifically provided that the Respondent can state such additional facts as may be found necessary in his reply but as far Rule 42 only the additional facts which are alleged by the Respondent are required to be answered to but there is no provision for alleging new additional facts by the Applicant/Petitioner in rejoind ..... X X X X Extracts X X X X X X X X Extracts X X X X
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