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TMI Blog2023 (1) TMI 1106X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 05.01.2023 passed by the Learned 'Adjudicating Authority' (National Company Law Tribunal, Hyderabad Bench - I) in CP (IB) No.289/9/HDB/2022, whereby the 'Adjudicating Authority' has admitted the 'Application' filed under Section 9 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as 'The Code'), the Suspended Director of the 'Corporate Debtor' preferred this Appeal. The 'Adjudicating Authority' while admitting the Section 9 'Application', had observed as follows : "11. The operational creditor got issued legal notice dated 28.06.2022 which has been received by the corporate debtor. The corporate debtor had sent reply dated 12.07.2022 raising certain contentious pleas. 12. We have carefully examined the record, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 01.02.2021, the 'Corporate Debtor' had requested the 'Operational Creditor', to dispatch the inventory lying in the warehouse of the 'Operational Creditor' based in Mumbai, but there was no response. Despite repeated requests from the 'Corporate Debtor' to vacate the warehouse of the Respondent, the 'Operational Creditor' kept using the same and making frivolous demands on the 'Corporate Debtor'. Clause 32 of the 'Agreement' mentions 'Arbitration Clause' and it is the case of the Appellant that instead of resolving the dispute, the Respondent filed this Section 9 'Application'. 3. It is submitted that vide 'Order' dated 13.09.2022, the 'Corporate Debtor', was directed to serve a Petition of a copy within 3 days, and the matter was listed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore, the only course left with the 'Corporate Debtor' was to seek recalling of the 'Order' dated 21.11.2022 and 05.12.2022. 5. It is submitted that on 11.12.2022 immediately after passing of the 'Order' on 05.12.2022, the 'Corporate Debtor' preferred an 'Application' under Section 60(5) seeking the 'Recall Order' dated 21.11.2022 and 05.12.2022 thereafter the 'Phone Number' and the 'Email ID' in the e-Filing Portal was changed. Subsequently, the 'Corporate Debtor' received an email that the matter was listed 'For Hearing' on 22.12.2022 but the matter was not there in the 'Cause List'. It is argued that the 'Impugned Order' failed to consider the issue of whether 'services' were actually rendered in the absence of any acknowledgement on be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te Debtor has been taken time since 28.10.2022. Therefore, opportunity to file counter stands closed. List the matter for hearing on 05.12.2022." 7. From the aforenoted 'Orders', it is clear that the 'Corporate Debtor' had appeared on both the dates and that the copy of the Petition and the 'supporting documents' were served on them on 02.11.2022, hence the 'Adjudicating Authority' had closed the opportunity to file the 'Counter' vide 'Order' dated 21.11.2022; the matter was posted 'For Hearing' on 05.12.2022 and thereafter on 05.01.2023, the CIRP was initiated. When the matter came up 'For Hearing' on 05.12.2022, the 'Corporate Debtor' could have been present and submitted his arguments. Though, his right to file the 'Counter' was close ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... curring defaults' on behalf of the 'Corporate Debtor' and that the 'Operational Creditor', has requested for full and final payment of the outstanding dues. The 'Corporate Debtor' vide Reply dated 01.02.2022, requested for dispatch of the inventory stocked in the warehouse in Mumbai. The 'Operational Creditor' in reply to the email, sent an email dated 02.02.2022, highlighting the `outstanding dues', along with the 'Ledger' attached. But, there was no response and the 'Operational Creditor' sent one more email dated 29.03.2022, demanding the outstanding total dues of Rs.3,12,81,028/- and therefore issued a 'Legal Notice' dated 28.06.2022, for which, the 'Corporate Debtor' sent a 'Reply' dated 12.07.2022, but the amounts were not paid. 10. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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