TMI Blog2023 (1) TMI 1106X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 closed, he was not set Ex Parte as on the date 21.11.2022 and therefore he could have appeared on 05.12.2022 when the matter was posted For Final Hearing and having been present as on 11.12.2022, the Counsel was very much aware that the matter was posted For Hearing on 05.12.2022. Though, the Adjudicating Authority does not have the Power of Review it can, based on the facts and circumstances of the case, Recall the Order - In the instant case, this Tribunal, sitting in Appeal, does not find any tangible / substantial grounds to interfere with the impugned order. The Appellant, has challeng ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /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, there is no denial of entering into CFA Agreement dated 22.12.2020 between the parties and it's termination after giving due n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ehouse 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 on 28.10.2022. It is submitted that on 30.09.2022, at 10:45AM, the Corporate Debtor received an email from the Adju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5.12.2022. 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 behalf of the Corporate Debtor in the alleged documents and also that the pending invoices alleged to be raised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osed. 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 closed, he was not set Ex Parte as on the date 21.11.2022 and therefore he could have appeare ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or , 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. For all the aforenoted reasons and discussions, this `Tribunal , does not find any ` ..... X X X X Extracts X X X X X X X X Extracts X X X X
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