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Judgment
O R D E R
09.03.2022: Heard learned counsel for the Appellant as well as learned counsel appearing for the Respondent, Ms. Ruby Singh Ahuja. This Appeal has been filed against order dated 07.01.2022 passed by the Adjudicating Authority in CP (IB) 639/ND/2021. On 22.10.2021, the Adjudicating Authority passed following order:
“ORDER
Notice be issued upon the Respondent by all modes including the email ID of the Respondent. Affidavit of service must be filed within a week from today. Reply be filed within two weeks after the receipt of the notice. Rejoinder, if any, within a week from the date of receipt of the reply. List the matter on 30th November, 2021.
On the next date i.e. on 30.11.2021, none appeared for the Respondent. Adjudicating Authority on 30.11.2021 passed following order:
“ORDER
Ld. Counsel for the petitioner appears and submits that he has already filed the affidavit of service, which is on record. Despite service, none has appeared for the respondent. Last opportunity is given to the respondent to represent, failing which an order shall be passed in accordance with law. List the matter on 7th January, 2022.”
On 07.01.2022 when matter was taken up, the Adjudicating Authority observed:
“ORDER
Heard the Ld. Counsel for the Applicant as well as the Respondent. Ld. Counsel for the Respondent seeks adjournment to file Reply. On perusal of the order dated 30th November, 2021, we notice that last opportunity was given to Respondent to file the reply. So considering this, the right to file the reply of the Respondent is hereby closed. List the matter for arguments on 24th February, 2022.”
“Last opportunity was given to the Respondent to file the reply”, after making aforesaid observations the right to file reply was closed. Aggrieved by this order Appellant has filed the present Appeal.
Learned counsel for the Appellant submits that there was no occasion for the Adjudicating Authority to close the right to file reply of the Appellant on 07.01.2022, which was the next date fixed after 30.11.2021, when Appellant appeared and sought for time to file reply.
Learned counsel for the Respondent, Ms. Ruby Singh Ahuja, vehemently opposed the submission of the Appellant. She submits that when on 30.11.2021 order was passed giving last opportunity to the Appellant, they had no right to ask for further time to file reply on 07.01.2022.
We have heard learned counsel for the Appellant and learned counsel appearing for the Respondent.
The order dated 30.11.2021 only notices that none has appeared for the Respondent and observation of the Court was “last opportunity is given to the respondent to represent, failing which an order shall be passed in accordance with law”. Order dated 30.11.2021 cannot be read to mean that last opportunity was given to the Respondent to file ‘reply’. When the order was for last opportunity to the Respondent to ‘represent’ and when on the next date they appeared before the Adjudicating Authority through counsel, they have every right to ask for time to file reply. We are not persuaded with the argument of learned counsel for the Respondent that it was incumbent to the Appellants to file reply.
We are of the view that the Adjudicating Authority has committed error in rejecting the prayer of the Appellant by observing that last opportunity was given to Respondent to file the reply, by earlier order hence the right of the Respondent to file reply was closed. Order dated 07.01.2022 insofar as closing the right of the Appellant to file reply is concerned is unsustainable and hereby set aside. Learned counsel for the Appellant submits that he has already filed reply before the Adjudicating Authority. In view of the submission of the Appellant that reply has already been filed that reply may be taken on the record by the Adjudicating Authority. The Adjudicating Authority may proceed in the matter and decide the application in accordance with law. The Appeal is allowed accordingly.