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Judgment
ORDER
PER: MANNI SANKARIAH SHANMUGA SUDARAM, MEMBER JUDICIAL
The present Interlocutory Application no. 5712 of 2023 has been filed by the Applicant i.e., M/s Goldenline Infrastructures Private Limited under Rule 11 read with 51 of the National Company Law Tribunal Rules, 2016 seeking following reliefs: -
a)Allow the present application and set aside order dated 15.06.2023 and give direction to applicant bank to serve the paper book and summons to the Respondent herein;
b)Direct the Applicant Bank to file the proof of service of the summons and paper before this Hon’ble Tribunal;
c)Pass any further or other orders which this Hon’ble Tribunal deems fit and proper in the interest of justice.
Brief stated the facts of the present case as averred by the applicant are that the applicant has not received any notice or any paper book of the case by any mode till date. It is pertinent to mention that the Applicant Bank may be put to stick proof as to how and when they served the respondent and could not appear before this Tribunal and was proceeded ex-parte vide order dated 15.06.2023 and the same came to know when the applicant searching some other matter of the group company. Hence, the aforesaid order deserves to be set aside.
Reply has been filed by the Learned Counsel for the Applicant who is the Respondent in this application stating that the notice was issued vide order dated 19.04.2023 returnable on 18.05.2023 and also duly served through speed post to the Registered office address of the Corporate Debtor. That as per Tracking Report of speed post dated 08.05.2023, the said notice was served on 09.05.2023 “Item Delivered Confirmed”.
That the Copy of order was emailed vide email dated 05.05.2023 along with scanned copy of petition with all annexures. Further, the Applicant Bank who is Respondent in this present application has been filed an Affidavit of Service on 15.05.2023.
It is submitted that the Corporate Debtor has filed false information and averments made in the application are hereby vehemently denied as false.
We have considered the facts of the case and the submissions made by the applicant bank and the Respondent Corporate Debtor. The applicant bank has already established the completion of service of notice and having regard to the fact that notice of service is completed, as the Respondent Corporate debtor was not present, Corporate Debtor was finally been set as ex-parte vide order dated 15.06.2023. On 18.08.2023, the Respondent Corporate Debtor approached this Tribunal through his Counsel seeking to set aside the ex-parte order. Therefore, this Tribunal directed the Respondent Corporate Debtor to take steps for filing Vakalatnama as well as for filing appropriate application for setting aside ex-parte order dated 15.06.2023. Therefore, this present application has been filed by the Respondent Corporate Debtor.
On considering the facts, in the interest of justice and fair play and to afford an opportunity to the Corporate Debtor to defend himself as CIRP being a process, where it is desirable to hear the Corporate Debtor, the ex-parte order 15.06.2023 is set aside subject to payment of cost Rs. 15,000/-to be deposited in the account of Hon’ble Prime Minister’s Relief Fund within seven days and file the proof of payment or affidavit in view of having deposited the cost. Financial Creditor is directed to serve copy of the application within 3 days and file affidavit of service and Corporate Debtor is directed to file the reply within 10 days on receipt of the copy of the application and if the reply is not filed within 10 days, the opportunity now afforded to file the reply will be closed.
Accordingly, the instant application (IA No. 5712/ND/2023) is allowed subject to payment of cost as stated above.
List the C.P. No. 108/ND/2023 on 24.01.2024.