2023 (1) TMI 1106

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....(Technical)]: 1. Aggrieved by the 'Order' 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 p....

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....ch was replied to by the 'Corporate Debtor' on 12.07.2022. Vide email dated 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 dir....

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....the Counsel had not intimated about the listing of the matter on the said date. Therefore, 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 o....

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....the same shows that the same has been served on 02.11.2022. Despite service of the copy, counter not filed thus, the Corporate 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 05.1....