TMI Blog2022 (5) TMI 411X X X X Extracts X X X X X X X X Extracts X X X X ..... a failure of justice had been caused due to a wrong trial of a case in a Court which had no territorial jurisdiction no interference can be made on merits - A person who is not vigilant and has been duly served will not be qualified to pray for a second opportunity. A Court of Law is not under an obligation to issue Fresh Notic to the parties concerned when a party does not appear before the Court on the day of posting. It cannot be gainsaid that every cause pleaded by a person or party cannot be accepted where he is negligent slept over his rights. Before passing Exparte Orders, a Court of Law must be satisfied of Due Service as opined by this Tribunal. A Substituted Service should be effected as a last resort, when ordinary steps for Service prove futile. Filing of appeals before Appellate Authority - HELD THAT:- It cannot be ignored that in the present case, when the main CP (IB)/374/7/HDB/2019 was adjourned and listed on 08.08.2019 and on that day, the Appellant s Counsel had not appeared on account of Viral Fever. It comes to be known that the main Company Petition was heard and orders were reserved on 26.08.2019 and further, that the Appellant had not made any arrange ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the `suspended Board of Directors of the `Corporate Debtor has preferred the instant `Transfer Appeal No.115 of 2021 [Comp App (AT) (CH) (INS) No.539 of 2019 before this `Tribunal as an `Affected Person seeking to set aside the `impugned order dated 26.05.2020 passed by the `Adjudicating Authority (`National Company Law Tribunal , Hyderabad) in IA No. 900 of 2019 IA No. 901 of 2019 in CP(IB)374/7/HDB/2019. 2). Earlier, the `Adjudicating Authority (`National Company Law Tribunal , Hyderabad), while passing the impugned order on 26.05.2020 in IA No. 900 of 2019 in CP(IB)374/7/HDB/2019 at paragraph 10 to 17 had observed the following: 10. ``It is the contention of the Corporate Debtor that no notice was served at any point of time prior to admission of Application U/s. 7 of IB Code and that there was no intimation to the Corporate Debtor being the Respondent about this matter till the initiation of CIRP. 11. The Ld. Counsel for the Applicant herein further contended that the Registered Office of the Corporate Debtor is situated at Kurnool, Andhra Pradesh and therefore NCLT Amaravati Bench only had the jurisdiction to entertain the CP filed against it. 12. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rve that the Applicant may approach appropriate forum for the reliefs sought in the Instant Application. and accordingly, disposed of the Interlocutory Applications as `not maintainable . 3). The `Adjudicating Authority (National Company Law Tribunal, Hyderabad Bench, Hyderabad) in CP(IB) No.374/7/HDB/2019 on 27.09.2019 at paragraph 16 to 19 had among other things, observed the following: 16. During the hearing on 18.07.2019, one Mr. Sunil, Director of the Corporate Debtor appeared and prayed time for engaging a counsel and giving reply. Considering his request, matter was adjourned to 08.08.2019. But no representation was made on behalf of Corporate Debtor on 08.08.2019. 17. In view of the above and having satisfied with the proof of service of notice and since there was no representation, Respondent/Corporate Debtor was proceeded ex-parte on 08.08.2019. 18. Heard submissions of the learned counsel for the Petitioner/Financial Creditor and perused the record. 19. After hearing submissions of the learned counsel for the Petitioner/Financial Creditor and having perused the records, this Adjudicating Authority is satisfied with the proof placed by the P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ol, Vishakhapatnam, Andhra Pradesh 518395 and the same was duly intimated to the `Competent Authorities , which is reflected in the `Ministry of Corporate Affairs Website. 7). The `Appellant takes a stand in January 2019, despite facing severe financial difficulties, the `Corporate Debtor with a view to resolve its `debts was in the process of negotiating and restructuring its dues keeping in mind the grievances of the `Creditors including the Respondent No.1. Subsequently, the Collector and District Magistrate, Kurnool District, wrote a letter dated 27.02.2019 to the 1st Respondent, to extend the time for repayment of loan by 12 months, in view of the fact that large number of `families are dependent upon the Unit and the `General Market Conditions . Thereafter, the `Corporate Debtor was repaying the loan amounts diligently and repaid a sum of Rs.5,19,00,000/- of the entire loan amount. 8). In this connection, the Learned Counsel for the `Appellant points out that the ₹ 1st Respondent /`Bank had initiated proceedings under the `I B Code and on 18.07.2019, the `Appellant had entered appearance before the `Adjudicating Authority , Hyderabad, and prayed for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assed the `impugned order dated 26.05.2020 in IA No. 900 of 2019 IA No. 901 of 2019 in CP(IB) No.374/7/HDB/2019 in `disposing off the `Applications by directing the `Applicant therein to approach the `Appropriate Forum for the reliefs sought for in the `Applications and accordingly, `disposed off the IA No.900 of 2019 and IA No.901 of 2019 as `not maintainable . Also, the `Adjudicating Authority had opined that once an `Order Of Admission was passed, the `Adjudicating Authority has no power under the `I B Code , 2016, to `Recall or `Set-aside the Order . 14). It is brought to the notice of this `Tribunal that the `Corporate Debtor had filed Civil Revision Petition No. 2508 of 2019 between `Neerajaksha Iron and Steel Pvt. Ltd. V Corporation Bank whereby, the Hon ble High Court of Telengana, on 30.10.2019 was pleased to stay the operation of the order dated 27.09.2019 by staying the `CIRP and `Moratorium . Again, the `Corporate Debtor was perforced to approach the `Hon ble High Court of Telengana in Civil Revision Petition No.3080 of 2019 in the matter of `Neerajaksha Iron and Steel Pvt. Ltd. V Corporation Bank , which was dismissed as withdrawn on 30.01.2020. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that every `Tribunal has an `inherent power to recall its order and as such, the `Adjudicating Authority ought to have exercised the said power. 21). The Learned Counsel for the `Appellant submits that for the mistake of `nonappearance of the `Corporate Debtor/Petitioner s Counsel, the `Corporate Debtor/Petitioner should not suffer. 22). The `Adjudicating Authority ought to have considered the factual aspects and the legal aspects in a proper perspective and therefore, prays for : 1) To set aside the impugned order dated 26.05.2020 in I.A. No.900 of 2019 and in I.A.No. 901 of 2019 in CP (IB) No.374/7/HDB/2019 passed by the `Adjudicating Authority . 2) To set aside the order dated 27.09.2019 in CP (IB) No.374/7/HDB/2019 passed by the `Adjudicating Authority Appellant s Decisions: 23). The Learned Counsel for the `Appellant refers to the decision of the `Hon ble Supreme Court in Harshad Chiman Lal Modi V DLF Universal Ltd Anr. reported in (2005) 7 SCC 791 at Spl Page 792 to 793 and 794 wherein, it is observed as under: Section 16 CPC recognises a well-established principle that actions against res or property should be brought in the forum w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law is well settled on the point that if such objection is not taken at the earliest, it cannot be allowed to be taken at a subsequent stage. Jurisdiction as to subject-matter, however, is totally distinct and stands on a different footing. Where a court has no jurisdiction over the subject-matter of the suit by reason of any limitation imposed by statute, charter or commission, it cannot take up the cause or matter. An order passed by a court having no jurisdiction is a nullity. Further, neither consent nor waiver nor acquiescence can confer jurisdiction upon a court, otherwise incompetent to try the suit. Hence, even though the plaintiff is right in submitting that the defendants had agreed to the jurisdiction of the Delhi Court and in the original written statement, they had admitted that the Delhi Court had jurisdiction and even after the amendment ion the written statement, the paragraph relating to jurisdiction had remained as it was i.e. the Delhi Court had jurisdiction, it cannot take away the right of the defendants to challenge the jurisdiction of the court nor can it confer jurisdiction on the Delhi Court, which it did not possess. (Paras 30, 32 and 37) Where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n such application. It is not in dispute that with regard to Corporate Debtor whose registered office is situated in Haryana, the National Company Law Tribunal, Chandigarh has been made the Adjudicating Authority. In the present case, the Corporate Debtor / Corporate Person s registered office is situated in Gurgaon, Haryana, therefore, the Hon ble President, NCLT for New Delhi Bench (Adjudicating Authority) rightly observed that petition at New Delhi is not maintainable. and finding no merit, the `Appeal was `dismissed . 25). In the decision in `Pramod Sharma V Dental Implants, reported in (2017) 200 Comp Cas 381 at paragraph 8 to 10, it is observed as under: 8. Sub-rule (2) of rule 49 says, that when an application is heard ex-parte against the respondents, such respondents are given right to apply to the Tribunal to set aside the said order and the Tribunal can set aside the order if the respondents satisfy the Tribunal that the notices were not duly served or that they were prevented by any sufficient cause from appearing for hearing. In the case on hand, admittedly, no notice has been given on the application, I.A.No. 31 of 2016 to the original petitioner. Theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... long with T.P. No. 100 of 2016 for reply of the original petitioner and other original respondents. Respondent No. 2 shall pay costs of Rs.10,000 to the original petitioner within two weeks. 26). The Learned Counsel for the `Appellant seeks in aid of the decision of the `Hon ble Supreme Court in `Hasham Abbas Sayyad V Usman Abbas Sayyad reported in (2007) 2 Supreme Court Cases at page 355 at Spl Page 357, wherein it is observed and held as under: A distinction must be made between a decree passed by a court which has no territorial or pecuniary jurisdiction in the light of Section 21 CPC, and a decree passed by a court having no jurisdiction in regard to the subject-matter of the suit. Whereas in the former case, the appellate court may not interfere with the decree unless prejudice is shown, ordinarily the second category of the cases would be interfered with. (Para 24) 27). The Learned Counsel for the `Appellant refers to the order dated 17.07.2019 in the matter of NUI Pulp and Paper Industries Private Limited V M/s. Roxcel Trading GMBH (Comp App (AT) (INS) 664 of 2019), wherein at paragraph 4 and 10, it is observed as under: 4.``Learned Counsel for the Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uce receipt thereof because it was also duty of director/officer of corporate debtor to keep the track of the matter but they appeared to have ignored duty. This amount will be used as part Resolution cost incurred by IRP/Operational Creditor, if any. The Corporate Debtor is also directed to file affidavit-in-reply within 7 days and give copy of the same to the other side. If above conditions are not fulfilled then this application would deemed to be rejected and the Corporate Insolvency Resolution Process would be proceeded further. With this, application being CA(IB) No. 987/KB/2018 in CP(IB) No. 202/KB/2018 is disposed of. ₹ 1st Respondent /`Bank Submissions: 29). The Learned Counsel for the ₹ 1st Respondent /`Bank contends that objection to the `Territorial Jurisdiction of a Court or `Tribunal or an `Inherent Lack of Jurisdiction Plea to entertain a `Suit /`Application should be raised at the first instant and can be waived and in this connection refers to the decision of the `Hon ble Supreme Court in Mantoo Sarkar V Oriental Insurance Co. Ltd. Ors. reported in AIR (2009) Supreme Court page 1022 wherein at paragraph 17 to 19 and 21, it is observ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ling within the former category the judgment would be a nullity, in the latter it would not be. It is not a case where the Tribunal had no jurisdiction in relation to the subject matter of claim. As a matter of fact the civil court had no jurisdiction to entertain the suit. If the Tribunal had the jurisdiction to entertain a claim petition under the Motor Vehicles Act, in our opinion, the Court should not have, in absence of any finding of sufferance of any prejudice on the part of the first respondent, entertained the appeal. In Bikash Bhushan Ghosh v. Novartis India Ltd., MANU/SC/7351/2007 (2007) IILLJ837SC, this Court had held: 17. There is another aspect of the matter which cannot be lost sight of. If the provisions contained in the Code of Civil Procedure are given effect to, even if the Third Industrial Tribunal, West Bengal had no jurisdiction, in view of the provisions contained in Section 21 of the Code of Civil Procedure, unless the respondent suffered any prejudice, they could not have questioned the jurisdiction of the court. In Kiran Singh v. Chaman Paswan this Court held: (AIR p. 342, paras 6-7) ₹ 6. ... If the question now under consideration fel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the place of suing should be allowed by an appellate or revisional court, unless there was a consequent failure of justice. It is the same principle that has been adopted in Section 11 of the Suits Valuation Act with reference to pecuniary jurisdiction. The policy underlying Sections 21 and 99 CPC and Section 11 of the Suits Valuation Act is the same, namely, that when a case had been tried by a court on the merits and judgment rendered, it should not be liable to be reversed purely on technical grounds, unless it had resulted in failure of justice, and the policy of the legislature has been to treat objections to jurisdiction both territorial and pecuniary as technical and not open to consideration by an appellate court, unless there has been a prejudice on the merits. The contention of the appellants, therefore, that the decree and judgment of the District Court, Monghyr, should be treated as a nullity cannot be sustained under Section 11 of the Suits Valuation Act.' Furthermore in determining as to whether a part of cause of action has arisen within the territorial jurisdiction of the court vis-a-vis an appellate court a large number of factors may have to be take ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ward may be satisfied by the appellant but it would be entitled to realise the same from the owner of the tractor and the trolley wherefor it would not be necessary for it to initiate any separate proceedings for recovery of the amount as provided for under the Motor Vehicles Act. 14. It is well settled that in a situation of this nature this Court in exercise of its jurisdiction under Article 142 of the Constitution of India read with Article 136 thereof can issue suit directions for doing complete justice to the parties. 30). The Learned Counsel for the ₹ 1st Respondent/Bank falls back upon the decision of the `Hon ble Supreme Court in Sneh Lata Goel V Pushplata and Ors., reported in AIR 2019 SC at Page 824, wherein at paragraph 14 to 19, it is observed as under: 14. The objection which was raised in execution in the present case did not relate to the subject matter of the suit. It was an objection to territorial jurisdiction which does not travel to the root of or to the inherent lack of jurisdiction of a civil court to entertain this suit. An executing court cannot go behind the decree and must execute the decree as it stands. In Vasudev Dhanjibhai Modi v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he decree on the ground of a want of territorial jurisdiction on the part of the court which passed the decree. 18. We have also not found merit in the contention that the impugned order of the High Court, being an order of remand, is in the nature of an interlocutory order which does not brook any interference. By the impugned order, the High Court has directed the executing court to entertain an objection to the validity of the decree for want of territorial jurisdiction. Such an objection would not lie before the executing court. Moreover, the objection that the property at Ranchi did not belong to the common ancestor is a matter of merits, which if at all, has to be raised before the appropriate court in the first appeal. 19. For the above reasons, we allow the appeal and set aside the impugned judgment and order of the High Court. The executing court shall conclude the execution proceedings expeditiously. There shall be no order as to costs. 31). The Learned Counsel for the ₹ 1st Respondent/`Bank points out that the `Debt of the ₹ 1st Respondent/Bank , on 12.10.2018, stood adjudicated against the `Corporate Debtor in O.A.No. 1331 of 2016, on the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1st Respondent/Bank about the `change of address of the Registered Office of the Company. Further, the `Board Resolution filed by the `Appellant together with I.A. Nos.900 and 901 of 2019 also reflects that the registered office of the `Appellant was Hyderabad, Telengana. Indeed, the `Appellant along with I.A. Nos. 900 and 901 of 2019 had brought on record a `Letter addressed by the `Vijaya Bank which reflects the address for all communication was Lakdikaphool, Hyderabad, Telengana. 36). The Learned Counsel for the ₹ 1st Respondent/Bank submits that it is the `Appellant s case that he was informed of the `Admission of the `Application filed under Section 7 of the Code, by the `Resolution Professional through letter dated 28.10.2019. However, I.A. No. 900 of 2019 and I.A.No. 901 of 2019 for setting aside an `Exparte Order were filed on 16.10.2019, which is earlier to 28.10.2019 i.e., the date of alleged knowledge. No reasons were given for the failure of the `Appellant to contact his `Advocate for more than two months period. 37). The Learned Counsel for the ₹ 1st Respondent/Bank brings it to the notice of this `Tribunal that the `Appellant had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essed a `Letter dated 06.10.2018 to `M/s. Neerajaksha Iron and Steel Private Limited (`Corporate Debtor ) on the subject of `Approval of `OTS Proposal in `NPA Account of M/s Neerajaksha Iron and Steel Private Limited, wherein it is mentioned as under: As per the offer letter given by you Dt. 24.09.2018 the competent authority of our Bank has accorded approval for the captioned OTS proposal on the following terms and conditions: a) Acceptance of Rs.12.00 Crores to consortium in full and final settlement of the amount payable as under: i) Rs.10.00 lakhs already paid in no-lien account. Rs.90.00 lakhs to be paid on or before 12.10.2018. ii) Rs.1.00 crore to be paid on or before 31.10.2018. iii) Balance Rs.10.00 crores to be paid in 5 EMI of Rs.2.00 crores on or before every month end commencing from Nov 18. b) You have to pay the delayed period interest at MCLR + 1% i.e., 9.70% beyond 30 days from the date of approval on the payable amount of offer amount i.e., from 06.11.2018. 42). The Learned Counsel for the ₹ 1st Respondent/Bank submits that the `Appellant has not raised any issue/controversy relating to the merits of the case. Also, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the hindrance created by the `Promoter/Director/Appellant . 45). Further, when the `Resolution Professional had visited the factory, it was noticed as well as informed by the earlier `Plant Manager that their factory is shut down from July 2019. The `Resolution Professional filed an `Interlocutory Application No. 331 of 2020 , seeking necessary directions from the `Adjudicating Authority under Sec 19 (2) of the I B Code, 2016 and the same is pending. 46). The `Corporate Debtor is trying to buy time and mishandled the accounts, he had diverted a sum of Rs.75,00,000/- lying in `Corporate Debtor s Bank Account during the `CIRP period when there was a stay from the `Hon ble High Court without any information to the `Resolution Professional . 47). An Interlocutory Application No. 459, seeking directions under Section 60 (5) of the I B Code, 2016 filed by the `Resolution Professional is pending before the `Adjudicating Authority . The `Appellant is not cooperating to provide the required information to the `Interim Resolution Professional/Resolution Professional and also to deal with the `Banking matters/Cheques routed through `IRP/RP (countersigned by IRP/RP) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng on 12.03.2020 and that the said committee had approved the `RFRP , to be issued to the `Prospective Resolution Applicants . The last date for submission of `Resolution Plan was 15.04.2020. 54). Apart from the above, it is the stand of the ₹ 2nd Respondent that in the ₹ 4th Committee of Creditors Meeting , the `Members had directed the `Resolution Professional to prefer an `Application before the `Adjudicating Authority for an extension of `CIRP period, further 72 days beyond the 180 days Viz., up to 05.06.2020 and the `CoC Members had voted 100% in favour of the `CIRP period extension. Also that, as per `IBBI (Insolvency Resolution Process for Corporate Persons) (Third Amendment) Regulations, 2020 dated 29.03.2020, in terms of Regulation 40C, the period of lock down imposed by the Central Government because of the pandemic of Covid-19, shall not be counted for the purpose of the timeline. 55). It is the version of the ₹ 2nd Respondent , out of six `Prospective Resolution Applicants , 4 could not secure `E-Pass , to visit the site during Covid-19 lock down. In the ₹ 5th Committee of Creditors , that took place on 23.06.2020, the `Members of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... avati. Appellant s Rejoinder: 63). It is the stand of the `Appellant that only, the `National Company Law Tribunal , within whose `jurisdiction the Registered Office of the `Corporate Debtor is located shall be deemed to be the `Adjudicating Authority and shall have `jurisdiction to initiate ` Corporate Insolvency Resolution Process , against the `Corporate Debtor . Further, a `Decree /`Order passed by a `Court without `jurisdiction is a nullity and a plea against it can be set up at any stage. 64). The `Appellant , during the hearing of IA Nos.900 and 901 of 2019, the opportunity for the first time, to raise an objection as to the `jurisdiction of the `National Company Law Tribunal , Hyderabad, and thus, the objection as to the `jurisdiction was taken at the first available instance itself. The `Board Resolutions , annexed to the `Applications filed before the `National Company Law Tribunal , Hyderabad Bench, were a part of the old printed stationery and it cannot form the basis of alleging that the Registered Address of the `Corporate Debtor was anywhere, other than the address available on the records of the `Registrar of Companies . 65). The `Nationa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ported in 11 Calcutta Weekly Notes Page 848. 71). In respect of a `Waiver , there ought to be some clear and decisive act or conduct beyond mere silence, as pure silence by a party in regard to a right perfectly known to the other can really mislead a man of average intelligence. The aspect of `Waiver is a mixed question of `Law and Facts . 72). The `principle of waiver or `Approbation and `Reprobation lies at the root of conduct of productive change of activation and principle is akin to the `Rule of Constructive Resjudicata IV as provided in Explanation 4 of Section 11 of Civil Procedure Code. Also that, a `Court of Law / `Tribunal ought to check the tendency of an `Unsuccessful Litigant to avoid his defeat by devising a new case which was never projected when it should have been set up. Acquiescence: 73). `Acquiescence is nothing more than an absolute or positive waiver. It amounts to the abandonment of rights as per decision in Govindsa Marotisa V Ismail and Anr., reported in AIR 1950 Nagpur, Page 22. Estoppel: 74). Be it noted, that `Estoppel is not a `Cause of Action . `Estoppel deal with `Question of Fact and not `Question of Right . How ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ority . In the meanwhile, the `Adjudicating Authority had set the `Corporate Debtor as `Exparte and proceeded the matter on 08.08.2019 and upon enquiry with his earlier Advocate he was informed that the `Advocate could not attend the `Court as he was suffering from `Viral Fever . 81). That apart, the `Corporate Debtor as Petitioner in I.A.No. 900 of 2019 in CP (IB) No. 374/7/HDB/2019 had prayed for setting aside the `Exparte Order dated 27.09.2019 in main CP (IB) No. 374/7/HDB/2019 and further sought permission to contest the main Company Petition on merits by providing an opportunity to it, which will not cause any prejudice to the `Respondent /`Financial Creditor /`Applicant . 82). The `Appellant /`Director of M/s. Neerajaksha Iron and Steel Private Limited (`Corporate Debtor ), on behalf of the `Corporate Debtor , (As an `Applicant /Petitioner), before the `Adjudicating Authority , had filed IA No. 901 of 2019 in CP(IB) No.374/7/HDB/2019 inter alia averring that `No Notice was served (upon the `Corporate Debtor ) before filing of the main CP (IB) No. 374/7/HDB/2019 and further that a copy of the `Application/Petition (Under Section 7 of the `I B Code ) was also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he following order: Counsel for the Petitioner present. No representation on behalf of the Respondent. As seen the Order dated 18.07.2019, one Mr. Sunil, Director of the Corporate Debtor was present and prayed time for engaging counsel to give reply. At the request, matter posted to today. Sufficient time is given to the other side. Respondent is proceeded as Ex-parte. For hearing submissions of the Petitioner s counsel, matter adjourned. Petitioner s counsel is directed to inform next date of hearing to the other side. Put up the matter on 26.08.2019. 88). It is represented that the orders were reserved on 26.08.2019, after hearing the matter and the `Application filed by the ₹ 1st Respondent/Bank under Section 7 of the Code was admitted for `CIRP on 27.09.2019. 89). The ₹ 1st Respondent/Bank in its counter (to both the Applications) before the `Adjudicating Authority had stated that the `Corporate Debtor had not informed the Bank in regard to the change of the Registered Office address from `Hyderabad to `Kurnool . The `Corporate Debtor had not made any arrangements to submit its arguments on 26.08.2019 before the `Adjudicating Authority . ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 74/7/HDB/2019 (under Section 7 of the `I B Code, read with Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016, under Part V, `Particulars of Financial Debt (Documents, Records and Evidence of Default), it was mentioned that the `Charge was first created in April 2011 and agreement for `Term Loan , `Working Capital Facility and `Deed of Hypothecation to secure demand, cash credit was executed, `Joint Mortgage by `Deposit of Title Deeds by way of construction delivery of companies, immovable properties was confirmed vide Registered MOD No.1163/2011 dated 06.04.2011. Also, it was mentioned that the `Charge Certificate dated 11.08.2013 was for Rs.18.75 Crores. 95). Before the `Adjudicating Authority , the ₹ 1st Respondent/Bank in CP (IB) No.374/7/HDB/2019, in the statement of facts filed on behalf of it at paragraph 13 had mentioned that the `Consortium Banks had executed `inter-se agreement for `Consortium Working Capital and `Term Loan Advance to the `Corporate Debtor on 09.05.2011. 96). Besides the above, the 1st Respondent/Bank had also averred in its statement of facts before the `Adjudicating Authority that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ebtor (M/s. Neerajakshi Iron and Steel Private Ltd, R/o. Flat No. 108, Sovereign Shelter, Ganga Jamuna Hotel, Lakdikapool, Hyderabad 500004 (OR) Factory Address M/s. Neerajakshi Iron Steel Private Limited, Site No.4 5, Medehal Village, Halaharvi Mandal, Kurnool District, A.P.-518395, Debtor. Also, it is brought to the notice of this `Tribunal that the `Substituted Service (paper publication) was made in the Telugu language newspaper `Mana Telengana (Telugu) on 10.07.2019 (Edition) of course, in the place where the Registered Office of the `Corporate Debtor was situated and to that effect `proof of service was filed before the `Adjudicating Authority . 101). On 08.08.2019, the `Adjudicating Authority had clearly observed in the order of main CP (IB) No.374/7/HDB/2019 that `as seen from the order dated 18.07.2019 one Mr. Sunil, Director of the `Corporate Debtor was present and prayed time for engaging Counsel to give `Reply . At his request matter was posted to today. Sufficient time was given to the other side, the Respondent was proceeded as exparte. For hearing the submissions of the Petitioner s Counsel (1st Respondent/Bank) the matter was adjourned and that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... objection to its territorial jurisdiction is one which does not go to the competence of the Court and can, therefore, be waived. In the instant case, when the plaintiff obtained the leave of the, Bombay High Court on the original side, under el. 12 of the Letters Patent, the correctness of the procedure or of the order granting the leave could be. questioned by the defendant or the objection could be waived by him. When he agreed to refer the matter to arbitration through Court, he would be deemed to have waived his objection to the territorial jurisdiction of the Court, raised by him in his written statement. It is wel settled that the objection as to local jurisdiction of a Court does not stand on the same footing as an objection to the competence of a Court to try a case. Competence of a Court to try a case goes to the very (1) (1886) L.R. 13A. 134. root of the jurisdiction, and Where it is lacking, it is a case of inherent lack of jurisdiction. On the other hand, an objection as to the local jurisdiction of a Court can be waived and this principle has been given a statutory recognition by 'enactments like s. 21 of the Code of Civil Procedure. Having consented to have t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he power to hear an `Appeal from orders of the `Adjudicating Authority (vide Section 5 (1) - National Company Law Tribunal), is the `National Company Law Appellate Tribunal . `Every Appeal shall be filed within 30 days before the National Company Law Tribunal which may admit the `Appeal to be filed after expiry of 30 days if it is satisfied that there was `Sufficient Cause for not filing an `Appeal within 30 days but such period shall not exceed 15 days. 111). As far as the present case is concerned, the `Insolvency Proceedings was filed in the month of June 2019 before the `Adjudicating Authority (National Company Law Tribunal, Hyderabad Bench) against the Corporate Debtor in regard to the repayment of dues. In June 2019, the States of Telengana and Andhra Pradesh were under the jurisdiction `Adjudicating Authority (National Company Law Tribunal, Bench at Hyderabad. Although, the Amaravati Bench of the `Adjudicating Authority (National Company Law Tribunal), was notified on 08.03.2019 for the State of Andhra Pradesh (vide Ministry of Corporate Affairs notification published in `The Gazette of India Extraordinary it became effective only from August 2019 (as seen from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter is that the aforesaid two IA Nos. 900 and 901 of 2019 were filed by the Corporate Debtor/Petitioner, on 16.10.2019, only after the main Petition being admitted on 27.09.2019 for commencement of `CIRP against the `Corporate Debtor . Glimpse of NCLT Rules, 2016: 115). In this connection, this `Tribunal aptly points out that Rule 37 of the NCLT Rules, 2016 deals with `Notice to Opposite Party . Rule 38 speaks of `Service of Notices and Processes . Rule 41 relates to `Filing of Reply and other Documents by the Respondents . Rule 42 concerns with `Filing of Rejoinder . Rule 44 pertains to hearing of `Petitions or Applications . Rule 45 of NCLT Rules, 2016, refers to `Rights of a Party to appear before the Tribunal . Rule 48 speaks of `Consequence of Non-appearance of Applicant . Rule 49 pertains to `Exparte Hearing and Disposal . 116). In the present case, despite the fact that the `Appellant has come out with the issue of `Territorial Jurisdiction , which was not projected at the earliest point of time, before the `Adjudicating Authority on the side of the `Corporate Debtor , considering the fact that one Mr. Sunil, Director of the Corporate Debtor had presented hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y `Review Petition as against the `Original / Final Order passed by an `Adjudicating Authority (National Company Law Tribunal) and equally there is no power showered upon the `Adjudicating Authority to `Recall its own `Original / Final Order . Looking at from any angle, the `Appellant has not exhibited or shown or made out any `Sufficient Cause or `Good Cause (to the subjective satisfaction of this `Tribunal ) in respect of all stages of the proceedings in CP(IB) No.374/7/HDB/2019 with a view to enable this `Tribunal 1) To interfere with the `impugned order dated 26.05.2020, passed by the `Adjudicating Authority (National Company Law Tribunal, Hyderabad Bench) in I.A. No. 900 and 901 of 2019 and 2) To interfere with the final order dated 27.09.2019 passed by the `Adjudicating Authority (National Company Law Tribunal, Hyderabad Bench) in CP(IB) No.374/7/HDB/2019 for setting aside the same. Resultantly, the `Appeal fails. Conclusion: In Fine, the T.A.No.115 of 2021 (Comp. App (AT) (CH) (INS) No.539 of 2019 is dismissed. No costs. I.A. No. 1380 of 2020 and I.A. No. 1381 of 2020 are Closed. Before parting with the case, since the `Appellant had remitted Rs.7,000 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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