TMI Blog2022 (2) TMI 548X X X X Extracts X X X X X X X X Extracts X X X X ..... Rules. In view of the above, the impugned orders dated 30.08.2019 and 16.09.2019 are hereby set aside and the matter is remitted back to the Ld. Adjudicating Authority (National Company Law Tribunal), Mumbai Bench with a request to hear the parties including the Appellant herein and Respondent No. 1 herein about his fee and expenses for the period he has worked as IRP and pass appropriate orders within six weeks from the date of receipt of this judgment. Registry to upload the Judgment on the website of this Appellate Tribunal and send the copy of this Judgment to the Ld. Adjudicating Authority (National Company Law Tribunal), Mumbai Bench, forthwith. - Company Appeal (AT) (Insolvency) No. 1069-1070 of 2019 - - - Dated:- 11-1-2022 - [ Justice Anant Bijay Singh ] Member ( Judicial ) And [ Ms. Shreesha Merla ] Member ( Technical ) For the Appellant : Mr. Abhinav Vasisht, Sr. Advocate with Ms. Varsha Banerjee and Mr. Kumar Anurag Singh and Mr. Palash Singhai, Advocates For the Respondents : Mr. Satendra K. Rai and Mr. Pravar Veer Mishra Advocates for R-1. Mr. R. Sudhinder, Ms. Ekta Bhasin, Mr. Ranjit Shetty, Ms. Priyanka Shetty and Mr. Samar Kachwaha, Advocates for R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 23,00,00,000 Total 100,00,00,000 Total 110,00,00,000 iv) The Financial Creditor contends that an amount of ₹ 1,26,24,68,685/- is due and payable in respect of Facility 1 and an amount of ₹ 1,42,63,76,004/- is due and payable in respect of Facility 2. v) The Loan facilities are secured by hypothecation of various movable properties, the Corporate Guarantee given by the Corporate Debtor vide letters of Guarantee dated 27.06.2014 and 24.09.2014 for the two facilities respectively, the Corporate Guarantee given by the Vish Wind Infrastructure LLP vide letters of Guarantees of Mr. Ajay Mehra and Mr. Yogesh Mehra. vi) The Financial Creditor issued a recall notice dated 29.01.2018 to the WWWFPL for an outstanding amount of ₹ 254,72,62,584/- as on 28.01.2018 but nothing fructified. The Financial Creditor, thereafter, issued a letter dated 07.02.2018 to the Corporate Debtor for invocation of guarantee issued to the Financial Creditor for the debt of WWWFPL in respect of the default committed in repayment. vii) Further case is that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich are hereunder: 27.05.2019 Respondent Financial Creditor sent a copy of the Application to the Corporate Debtor vide letter dated 27.05.2019. It is pertinent to mention herein that the date of hearing was not mentioned in the letter dated 27.05.2019 addressed by the advocate for the Financial Creditor. This was merely an advance notice of the Petition without any intimation of date of hearing. 24.07.2019 The Ld. Adjudicating Authority passed an order wherein due to the fact that no notice was served upon the Appellant, the Appellant could not remain present before the AA on 24.07.2019. 31.07.2019 Financial Creditor addressed a letter dated 31.07.2019 to the Corporate Debtor which was received by the Corporate Debtor on 06.08.2019. In the said letter, the advocates for the Financial Creditor informed the Corporate Debtor for the first time that the matter is listed on 27.08.2019 (at page 119, Vol. I of the Appeal). 27.08.2019 As an abundant caution, on 27.08.2019, the Appellant though its representative instructed its lawyer to appear before Ld. Adjudicating Authority on 28.08.2019 (at page 107-108, Vol. I of the Appeal) and seek time to file reply so that it could es ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring the counsels without providing any opportunity to place on record the reply on merits to Application under Section 7 of IBC, reserved its order. 27.09.2019 Order dated 16.09.2019 was uploaded on the official website of the Adjudicating Authority on 27.09.2019. 6. It is further submitted that the finding of the Ld. Adjudicating Authority below is premised on the wrong interpretation of the law and provisions of the IBC as the Ld. Adjudicating Authority failed to exercise the power and jurisdiction vested upon it by the legislature which has caused grave prejudice to the interest of the Corporate Debtor as well Appellant. 7. It is further submitted that the Ld. Adjudicating Authority failed to provide reasonable opportunity to the Corporate Debtor of being heard which is in violation of principles of natural justice and not followed the due process and procedure as stipulated under Rule 150 of NCLT Rules and also failed to consider that the alleged transactions reflected as loan/debt is a sham transaction and in the absence of any reply the same could not be adjudicated upon. 8. It is further submitted that the Ld. Adjudicating Authority in a hasten manner proceeded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pon the sufficient cause being shown by the party. The Rule 49(2) of NCLT Rules read as hereunder: 49(2): Where a petition or an application has been heard ex parte against a respondent or respondents, such respondent or respondents may apply to the Tribunal for an order to set it aside and if such respondent or respondents satisfies the Tribunal that the notice was not duly served or that he or they were prevented by any sufficient cause from appearing (when the petition or the application was called) for hearing, the Tribunal may make an order setting aside the ex parte hearing as against him or them upon such terms as it thinks fit: Provided that where the ex parte hearing of the petition or application is of such nature that it cannot be set aside as against one respondent only, it may be set aside as against all or any of the other respondents also. 12. The Learned Senior Counsel for the Appellant placed reliance upon two judgments passed by this Appellate Tribunal in the case of AKJ Fincap Limited Vs. Bank of India, Company Appeal (AT) (Insolvency) No. 178 of 2021 and Bhasker Vs. Sai Precious Traexim Pvt. Ltd., Company Appeal (AT) (Insolvency) No. 531 of 2020 whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erein it was recorded that Company Petition was served to Appellant/Corporate Debtor but there is no response also non-attendance at the time of hearing and further it was recorded that this is a high-stake case which is required to be taken on priority basis. The Respondent No. 2/Financial Creditor was directed to serve notice upon the Appellant/Corporate Debtor as a last chance to make a representation in the matter. 16. It is further submitted that on next date i.e. 28.08.2019, when the case matter was called before the Ld. Adjudicating Authority, an Advocate appeared for the Corporate Debtor without a Vakalatnama or an authority letter and requested for further time. Since the matter was being heard after three months of filing of the Company Petition and ample time was given to the Appellant/Corporate Debtor, the Ld. Adjudicating Authority proceeded to hear the matter and eventually reserved the matter for orders. Thereafter, the Ld. Adjudicating Authority pronounced the order and admitted the Company Petition. 17. It is further submitted that the Appellant/Corporate Debtor have further tried to made out a case that the order was not pronounced in open Court and it was n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ject matter of the petition and a set of completely distinct transactions which are the subject matter of another Corporate Insolvency Resolution Process ongoing before the Ld. NCLT, Ahmedabad Bench. 20. It is further submitted that the CIRP is ongoing before the Ld. NCLT, Ahmedabad is in respect of Wind World (India) Limited whereas Jogihali Wind Energy Private Limited, Mahidad Wind Energy Private Limited, Sipla Wind Energy Private Limited have submitted their claims to the Resolution Professional. Jogihali, Mahidad and Sipla are subsidiaries of IL FS Energy Development Company Limited. 21. It is further submitted that the dispute in the present Appeal is between the Appellant/Corporate Debtor and the Respondent No. 2/Financial Creditor. The Respondent No. 4 is not privy to the contract between the Appellant and Respondent No. 2. There are no grounds or reasons to implead Respondent No. 4 and hence the Respondent No. 4 should not be impleaded in the present proceedings. Further, Respondent No. 4 is not required to adjudicate the dispute under Section 7 of the IBC filed by the Financial Creditor against Corporate Debtor. Submissions on behalf of the Respondent No. 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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