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Judgment
O R D E R
Per: Justice Rakesh Kumar Jain (Oral)
This is a batch of five appeals bearing Comp. App. (AT) (Ins) No. 1090 of 2023, Comp. App. (AT) (Ins) No.1041 of 2023, Comp. App. (AT) (Ins) No.1043 of 2023, Comp. App. (AT) (Ins) No.1044 of 2023 & Comp. App. (AT) (Ins) No.1078 of 2023.
In these appeals, the Appellant has filed application for condonation of delay i.e. I.A No. 3767 of 2023 in Comp. App. (AT) (Ins) No. 1090 of 2023, I.A. No. 3566 of 2023 in Comp. App. (AT) (Ins) No. 1041 of 2023, I.A. No. 3574 of 2023 in Comp. App. (AT) (Ins) No.1043 of 2023, I.A. No. 3576 of 2023 in Comp. App. (AT) (Ins) No.1044 of 2023 and I.A. No. 3725 of 2023 in Comp. App. (AT) (Ins) No.1078 of 2023.
At the time of preliminary hearing of this application, the Appellant requested that due to inadvertence, the application for condonation of delay is not properly worded, therefore, the appellant may be allowed to file an additional affidavit explaining the reasons for delay. The said prayer was granted in pursuance thereof, the Appellant has filed the additional affidavit in all the applications explaining the delay. The Respondent (RP) has filed the reply to the additional affidavit also.
After hearing Counsel for the parties and taking into consideration the reasons given in the application, the same is allowed and the delay is condoned.
In so far as the main appeal is concerned, Counsel for the Appellant has submitted that the RP filed an application bearing I.A. No. 3218 of 2023 before the Tribunal in which the following prayers were made:-
“a. Allow the present application and take on record the amended avoidance application which is attached as Annexure – 1 to the present application.
b. Take on record the amended memo of parties which is attached as Annexure – 2 to the present application.
c. Take on record the amended prayer as stated above in Paragraph no. 7 above, of the present application.
d. Pass such other or further order/order(s) as this Hon’ble Adjudicating Authority may deem fit and proper in the facts of the present case.”
It is submitted that the Tribunal, without giving notice to the Appellant has allowed the Respondent to place the amended memo of parties in CA No. 1165 of 2019. It is thus submitted that it is not only violation of principle of natural justice as the Appellant has been condemned without hearing but also it violates Rule of 37 of the NCLT, Rules 2016 (in short ‘Rules’) as per which for every application and petition notice has to be given. It is thus argued that the impugned order passed in I.A. No. 3218 of 2023 only be set aside by which the application has been allowed and the matter may be remanded back to the Tribunal to decide it again after giving an opportunity to the Appellant to contest the application by filing the reply, if any.
On the other hand, Counsel for the Respondent (RP) has submitted that the Tribunal has only taken on record the amended memo of parties and thereafter notice has been issued on the basis of amended memo of parties, therefore, the case is at the stage of hearing and no prejudice has been caused to the Appellant.
We have heard Counsel for the parties in regard to the decision taken in I.A. No. 3218 of 2023 and perused the record.
It is borne out from the record that I.A. No. 3218 of 2023 is filed by the Respondent (RP) in which he made as many as four prayers (referred to above). One of the prayers was to take on record the amended memo of parties which is attached as Annexure – 2 with the application. It is an admitted fact that the Tribunal did not issue any notice in the application and vide the impugned order dated 12.06.2023 allowed the application which is evident from the order itself where it says that ‘I.A is allowed’.
Rule 37 of the Rules provides that the Tribunal shall issue notice to the respondent to show cause against the application or petition on a date of hearing to be specified in the Notice. Whereas in this case the Respondent has filed the application in which no notice was given to the non-applicant (Appellant herein) and a decision has been taken by the Tribunal behind their back. Therefore, the Appellant has made all hue and cry before this Tribunal that the order has been passed ex-parte which has caused prejudice to their interest. The argument raised by the Respondent that after taking the amended memo of parties on record, notice has been issued and therefore, no prejudice has been caused is totally misplaced.
Thus, in view of the aforesaid facts and circumstances, we are of the considered opinion that there is an error in the procedure adopted by the Tribunal in allowing the application in question without giving notice to the Appellant herein. Therefore, we set aside the order dated 12.06.2023 passed in I.A. 3218 of 2023 and remand the case back to the Tribunal to decide the said application once again after affording opportunity of hearing to the Appellant. In case, copy of the application is not supplied to the present Appellant by the Respondent then it shall be done and the Appellant may if so choses file reply to the application and thereafter the Tribunal shall take a decision on the application in accordance with law by passing a speaking order. The parties are directed to appear before the Tribunal on the date already fixed i.e. 11th December, 2024.