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2022 (3) TMI 579 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHIRejection of application - recalling of ex-parte order - application were not served on the Corporate Debtor nor Demand Notice under Section 8 was served on the Corporate Debtor - principles of natural justice - HELD THAT:- The present is a case where Corporate Debtor was asking for recall of the order dated 8th February, 2019 and 10th April, 2019. Both the orders were passed ex-parte and no notices were served. The Adjudicating Authority committed error in holding that the Appellant was asking for review of the admission order. In the impugned judgment dated 30th November, 2021, learned Adjudicating Authority have relied on a judgment of Allahabad High Court in the matter of Khan Enterprises vs. National Company Law Tribunal & Ors. [2018 (9) TMI 1908 - ALLAHABAD HIGH COURT] for forming an opinion that Rule 11 of NCLT Rules cannot be used seeking recall/ review of the orders. It is noticed that what Corporate Debtor was seeking, was to recall the ex-parte order, which power was specifically conferred on the Adjudicating Authority under Rule 49, sub-rule (2). When power is specifically conferred under the Rule, there was no question of exercising any review jurisdiction in the facts of the present case. The Adjudicating Authority was fully competent to recall ex-parte order in exercise of its jurisdiction under Rule 49, sub-rule (2). This Tribunal was not called to consider the case for recall of ex-parte order, which was passed without service of notice on the Corporate Debtor. In the present case, the Adjudicating Authority has not rejected the Application of the Corporate Debtor on the ground that it has been passed after constitution of CoC. In the facts of the present case, the Appellant has clearly pleaded that although admission order under Section 9 was passed on 10th April, 2019, but CoC was constituted only in March 2021 that is much after filing of CA 405 of 2019 - the present is a case where Application to recall of order was filed much before the constitution of CoC. The amount having withdrawn by the Directors to their accounts, from the account of the Corporate Debtor, the Directors may deposit back the said amount into the account of the Corporate Debtor. Let the aforesaid deposit be made within 30 days from today by the Appellants - appeal allowed - decided in favor of appellant.
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