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TMI Blog2020 (10) TMI 391X X X X Extracts X X X X X X X X Extracts X X X X ..... an Interlocutory Application filed under rule 32 r/w rule 11 of the NCLT Rules, 2016 by Theco India Private Limited, the Operational Creditor in the underlying Company Petition (CP) bearing CP (IB) No.359/MB.II/2018, seeking restoration of the said CP which was dismissed inter alia for non-prosecution by this Adjudicating Authority vide order dated 08.08.2018. 2. The case of the Applicant/Operational Creditor 2.1. Upon perusal of the records, the following facts emerge: (a) The Applicant/Operational Creditor filed a petition under section 9 of the Insolvency and Bankruptcy Code (IBC) against the Applicant/Corporate Debtor seeking to initiate Corporate Insolvency Resolution Process (CIRP) against the Respondent/ Corporate Debtor. (b) Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to records." 3. Arguments of Mr Navin Arora, learned Counsel for the Applicant/ Operational Creditor 3.1. It is the stated case of the Applicant/Operational Creditor that the matter was mentioned before the Adjudicating Authority on 10.05.2018 and that the registry was directed to list the case on 18.06.2018. However, the case was not listed on that date but was instead listed on 19.06.2018 and thereafter on 08.08.2018. The Applicant/Operational Creditor submits that they did not get any notice mentioning the date of hearing and also the Counsel failed to take notice of the same. The Counsel's representative visited the Tribunal on 18.06.2018 but was unable to determine the reasons for non-listing on 18.06.2018 as was directed by the Adj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IA has been accepted for hearing by the Registry even without notice to the Respondent/ Corporate Debtor, which is clearly in violation of rule 23(5) ( 23(5): In the pending matters, all applications shall be presented after serving copies thereof in advance on the opposite side or his authorised representative ) of the NCLT Rules, 2016. The present application has been filed on 30.10.2018, whereas copies thereof were served on the Respondent/ Corporate Debtor more than a year later on 02.12.2019. Service letter dated 29.11.2019 as served upon the Counsel for the Respondent/ Corporate Debtor has been attached as proof at Exhibit-2 of the Reply. 4.4. Mr Pereira further submitted that rule 32 of the Rules ibid permit applications to be filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the Respondent/ Corporate Debtor filed a civil suit in CS No.395/2018 before the Hon'ble Madras High Court. Upon change in pecuniary jurisdiction, the suit was transferred to the City Civil Court and renumbered as OS No.2538/2019. The Applicant/ Operational Creditor has entered his appearance in the suit along with one other party. At present, the matter has been referred for mediation in Chennai. 4.9. Mr Pereira also submitted that reasons for delay have not been sufficiently explained. There was no reason for the Counsel for the Applicant/Operational Creditor to remain absent on two occasions. 4.10. Lastly, Mr Pereira reiterated his objections with regard to non-service of both the Petition and the present Application before filing w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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