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Judgment
PER: BENCH
This is an Application filed by the Applicant under rule 11 and 15 of NCLT rules, 2016 seeking directions to set aside the order dated 23.02.2022 and restore the right of the applicant’s right to file counter.
Gist of the application is:
a. That the Respondent has filed a petition vide CP (IB) No. 13/7/HDB/2019 under section 7 of IBC. 2016, claiming an amount of Rs. 16,30,09,364/- as total due from the applicant.
b. That the respondent company appeared first time before this Hon’ble Tribunal, through an administrator appointed by RBI and later confirmed by the NCLT, Calcutta. After which the matter came up before this tribunal on 23.02.2022 and this tribunal has forfeited the right the applicant to file counter in the company petition.
c. That in view of appointment of administrator for the respondent company, the respondent had not taken any steps for amending the cause title of company petition and didn’t serve any copy of such amended company petition on the applicant.
d. That as amended company petition, bringing on the record of administrator was not filed, the applicant herein couldn’t file a counter affidavit due to authorisation issues and the personnel of the applicant were suffering with Covid-19.
e. That this tribunal on 17.03.2022 had rejected the Interlocutory Application filed by the respondent herein, as affidavit filed along with the petition was not attested and posted the matter to 18.04.2022.
f. That further proceeding, without taking the counter affidavit on record in the company petition would cause a grave prejudice especially when several false allegations were levelled against the applicant herein.
g. Hence, prayed this tribunal to set aside the order dated 23.02.2022.
In the above backdrop the point that emerges for consideration by this Tribunal is: Whether the Applicant/petitioner has made out sufficient cause for setting aside the order dated 23.02.2022. If so can the petitioner be permitted to file the counter?
At the outset it may be stated that despite extending sufficient opportunity to the Applicant for filing counter if any in the Company Petition the Applicant has not filed the counter, and went on seeking the adjournment on the plea that respondent intends to settle the matter. Therefore, this Tribunal after observing that despite extending sufficient opportunity counter was not filed, forfeited the right to file counter vide order dated 23.02.2022 and listed the matter for hearing the Company petition. Even on that date or immediately thereafter the Applicant did not come forward to file this petition.
Later when Company petitioner wanted that the cause title be amended as there was change in the person who is competent to represent the company petitioner and filed an Application seeking replacement of authorized representative who filed the company petition by the representative appointed by the RBI, the Applicant opposed the said petition. Later this Tribunal allowed the same vide order dated 23.02.2022. Even at that time the Applicant did not choose to file counter in the Company Petition.
Therefore, the above facts clearly shows that Applicant is not pursing the matter diligently. As a result the proceedings are getting delayed before this Tribunal. However, in the interest of justice this Tribunal is of the opinion that denying the opportunity to the Applicant to file counter may cause prejudice to the Applicant and for the delay caused Applicant, the Applicant can be saddled with costs. We therefore allow this Application and setting aside the order dated 23.02.2022, however on condition that Applicant shall pay costs of Rs.10,000/- to the Bar Association within 3 days from the date of this order. In default the Application shall stand dismissed. Respondent is at liberty to file rejoinder if any within 7 days thereafter to the counter lest opportunity stands forfeited.
With these directions IA stands disposed of.
PER: BENCH
This is an Application filed by the Applicant under rule 11 and 15 of NCLT rules, 2016 seeking directions to set aside the order dated 23.02.2022 and restore the right of the applicant’s right to file counter.
Gist of the application is:
a. That the Respondent has filed a petition vide CP (IB) No. 13/7/HDB/2019 under section 7 of IBC. 2016, claiming an amount of Rs. 16,30,09,364/- as total due from the applicant.
b. That the applicant herein has filed a preliminary counter in the main petition regarding the maintainability and threshold limit under code.
c. That this tribunal vide its order dated 03.06.2022 has allowed I.A. No. 377/2022 with regard the amendment of the cause title of the main petition and permitted the applicant herein to file additional counter to the extent limited to such amendment.
d. That the applicant herein in its preliminary counter doesn’t plea all the grounds regarding the maintainability. Hence prayed this tribunal to take additional counter on record.
In the above backdrop the point that emerges for consideration by this Tribunal is: Whether the petitioner can be permitted to file the additional counter?
At this outset it may be stated that this Tribunal while disposing of IA No.377/2022, no doubt provided opportunity to the Applicant to file additional counter, in so far as it relates to the representation of the Company petition by the Administrator. However, petitioner now sought leave to raise pleas other than those relating to representation of the Administrator appointed by the RBI.
It maybe stated that order in IA No.377/2022, since attained finality, if the prayer in this Application is allowed, than it would amount to modifying the order in IA No.377/2022 which is impermissible. Therefore the present Application for leave in re hereby dismissed. However, the applicant is at liberty to file additional counter within 3 days from today contending pleas only in respect of representation of administrator appointed by RBI in the main Company petition in default Application stands dismissed.
With this observation Application is disposed of.