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TMI Blog2024 (5) TMI 1152X X X X Extracts X X X X X X X X Extracts X X X X ..... application filed by DBS Bank India Limited has been rejected. The Appellant aggrieved by the order dated 15.01.2024 has filed this appeal. 2. Brief facts of the case to be noticed for deciding this appeal are : 2.1. The Corporate Debtor- M/s. Vyam Technologies Ltd. was extended various financial facilities by DBS Bank India Limited by sanctioned letter dated 01.08.2011, Rs.25,00,00,000/- debt was granted. On default being committed by the corporate debtor in making the payment, financial creditor filed an OA No.466 of 2015 before the DRT. The Corporate Debtor entered into settlement with the financial creditor and on basis of joint application, consent decree was passed by the Adjudicating Authority on 18.06.2019. By order dated 15.07.2019, DRT awarded an amount of Rs.23,29,19,212.46/- along with interest from the date of O.A till realization. Consequently, recovery certificate was issued in favour of the financial creditor. Corporate debtor filed an appeal before the DRAT which appeal was withdrawn with liberty to file review petition before the DRT. The financial creditor filed an application under Section 7 before the NCLT claiming a default of amount of Rs.483,128,726.42/- t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the applications are pending CoC shall not take any further steps in the CIRP and IRP shall ensure that corporate debtor is run as a going concern. IA No.3470 of 2022 where prayer was made to recall the order dated 25.03.2022 was heard by the Adjudicating Authority and by impugned order dated 15.01.2024, the said application was rejected. Aggrieved by the impugned order dated 15.01.2024 passed in IA No.3470 of 2022, this appeal has been filed. Appeal came for consideration before this Tribunal on 31.01.2024 on which date the appellant prayed for two weeks' time to file an additional affidavit. Time was allowed on 31.01.2024 to the appellant to file an additional affidavit and additional affidavit in pursuance of the said order has been filed by the appellant on 29.02.2024. A short reply has been filed by the Respondent No.1 in the appeal. 3. We have heard Shri Gaurav Mitra, learned senior counsel appearing for the appellant, Shri Krishnendu Datta, learned senior counsel appearing for the Respondent No.1 as well as Counsel appearing for the IRP. 4. Shri Gaurav Mitra, learned senior counsel appearing for the appellant submits that the notices in Section 7 application filed by the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority on merits after returning a finding that a debt and default is proved. It is submitted that against the corporate debtor, there is a consent decree passed by the DRT where debt was acknowledged and on the basis of joint application, the consent decree was passed. Recovery certificate dated 24.07.2019 has been issued, thus, the debt against the corporate debtor is fully established and crystallised. Section 7 application was filed since there is a clear default on the part of the corporate debtor. In Section 7 application notices were issued which was duly served on the corporate debtor, neither any reply was filed nor any authorised counsel appeared on behalf of the corporate debtor. Counsel who does not have any vakalatnama appeared and stated that he has recently engaged and has not filed vakalatnama. Adjudicating Authority did not commit any error in proceeding to consider the application on merits and admitting the same. It is submitted that the present is a case where there is acknowledgment of debt by the corporate debtor and there are no grounds on which appellant can be heard questioning the debt and default. It is submitted that when the matter was heard on 31.01.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... DT/ADMIN/655/2 013 (Renewal of working capital credit facilities) 22 Crores 2 AMOUNT CLAIMED TO BE IN DEFAULT AND THE DATE ON WHICH THE DEFAULT OCCURRED (ATTACH THE WORKING FOR COMPUTATIO N OF AMOUNT AND DAYS OF DEFAULT IN TABULAR FORM That total amount of default is Rs. 48,31,28,726.42. (Rupees Forty Eight Crores Thirty One Lakhs Twenty Eight Thousand Seven Hundred and Twenty Six and Paisa Forty Two Only) till 22.09.2021 Vide Recovery Certificate No. 347/2019, on 24.07.2019, the Financial Creditor has been awarded Rs. 23,29,19,212.46/- (Rupees Twenty-Three Crore Twenty Nine Lakhs Nineteen Thousand Two Hundred Twelve and Paisa Forty Six Only) along-with interest @18% p.a. with effect from O.A. i.e., 08.10.2015 till realisation. Copy of the Recovery Certificate No. 347/2019 in MA NO. 135/2017 in O.A. NO. 466/2015 dated 24.07.2019 is annexed herewith as ANNEXURE 5. Computation of amount and days of default in tabular form is annexed herewith as ANNEXURE 6. 8. It is admitted fact that in Section 7 application notices were issued to the corporate debtor which were served on 07.03.2022. On 25.03.2022, application under Section 7 was listed before the Adjudicating Authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alled) 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." 5. This Appeal was entertained by this Tribunal on 18th April, 2022 and an Interim Order was passed directing that no further steps be taken in pursuance of the Order dated 25th March, 2022. Learned Counsel for the Respondent submits that Committee of Creditors had already been constituted. Be that as it may, Learned Sr. Counsel appearing for the Appellant has prayed liberty to withdraw the Appeal to enable him to avail remedy under Rule 49(2), we are of the view that prayer of the Appellant be allowed permitting the Appellant to file an Application under Rule 49 (2) which may be considered by the Adjudicating Authority in accordance with the law. We make it clear that we are not expressing any opinion on the merits of the Application which is to be filed by the Appellant under Section 49(2). Learned Sr. Counsel for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellant to file an application, as per order dated 04.07.2022 interim protection was extended for a period of one week. The application under Rule 49(2) was filed by the Appellant on 19.07.2022 on which notice was issued 22.07.2022 and the matter was there after taken on 27.07.2022 fixing the application 3470/2022 for 12.09.2022. Appellant filed an application for interim relief being I.A. No. 3630/ 2022 which is also been permitted to be listed on 12.09.2022, the application was filed on 28.07.2022. Learned Counsel for the Appellant submits that the application for recall of the order admitting CIRP is still pending and has been fixed for 12.09.2022, Adjudicating Authority ought to have passed an order on the interim application 3630/2022 grating some protection which have been simply listed on the 12.09.2022 when main application was to come. Both the applications i.e. 3470/2022 and 3630/2022 are still pending before the Adjudicating Authority, we see no reason to entertain this appeal. We have been informed by the Counsel for the Respondent that CoC has already been constituted. Both the applications being pending before the Adjudicating Authority, we are of the view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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." 15. When we look into Rule 49(2), it is clear that 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. As far as service of notice is concerned, it is an admitted fact that the notice was served on the appellant on 07.03.2022 which has not been denied nor the application was filed on the ground that notice was not served. The second ground on which order can be recalled is where he or they were prevented by any sufficient cause from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 49 of the NCLT Rules. The Rule 49(2) nowhere provides that even in such cases where the Ld. Counsel represent the Respondent without having any power and does not give any proper response, the order passed in the absence of proper response by the Ld. Counsel who represent the CD/Respondent need to be recalled as ex- parte order." 16. Rule 49 gives ample jurisdiction to the Adjudicating Authority to proceed for ex parte as corporate debtor does not appear. "Appearance" as contemplated under Rule 49(1) is appearance by the corporate debtor or by an authorised representative. 17. Counsel for the appellant has placed much reliance on the judgment of this Tribunal in Company Appeal (AT) (Insolvency) No.464 of 2022 decided on 14.07.2022 which was an appeal filed by Suspended Director of M/s. Abhisar Impex Private Limited, the corporate guarantor of the corporate debtor. It is submitted that in the case of corporate guarantor on date fixed i.e. 29.03.2022 the corporate debtor appeared through a counsel and made a request to grant time to file reply which request was refused and the Adjudicating Authority by order of the same day i.e. 29.03.2022 admitted Section 7 application. This Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich Company Appeal (AT) (Insolvency) No. 343 of 2024 has already been filed by the appellant which is pending consideration. 19. In the present appeal, the appellant has prayed for following reliefs:- "a) Allow the present appeal; b) Set aside the impugned order dated 15.1.2024 of the Hon'ble NCLT, New Delhi Bench (Court-II) passed in I.A No.3470/2022 and grant ad-interim ex-parte stay on further CIR proceedings arising out of the order dated 25.3.2022; c) Pass any such orders as the Hon'ble Appellate Tribunal may deem fit." 20. It is relevant to notice that this Tribunal on 21.01.2024 has granted time to the appellant to file an additional affidavit and Additional affidavit has been filed by the appellant bringing on record various materials pertaining to debt and sequence of the events with regard to restructuring of the debt and default by the corporate debtor and various proceedings taken therein. 21. Counsel for the financial creditor has also submitted that present is a case where debt and default is not even questioned since there is a consent decree passed by the DRT against the corporate debtor, hence, the appellant in this appeal is not making any subm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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