TaxTMI 
TaxTMI 
2023 (8) TMI 747
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....ard of Directors of M/s. Golden Tobacco Ltd. (Corporate Debtor) who are aggrieved against the order dated 23.02.2023 passed by the 'National Company Law Tribunal, Ahmedabad Court-2 (hereinafter referred as to 'the Adjudicating Authority') by which an application bearing Misc. Application No. 09 of 2022 in C.P. (IB) No. 268 of 2020 filed under Section 19 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred as to 'The Code') by the IRP in which the Adjudicating Authority issued a direction to the Suspended Management to handover all the requisite documents/records of the Corporate Debtor to the IRP within one-week observing that no one had appeared on behalf of Suspended Management in spite of service of notice. 2. Counsel for....
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....e was ever served upon the Appellant of the Application No.09 of 2022 and the Adjudicating Authority has wrongly recorded in the impugned order that no one had appeared on behalf of Suspended Management despite service of notice. 6. Counsel for the Appellant has referred to Rule 37, 38 & 105 of the NCLT Rules, 2016 (for short 'Rule') pertaining to notice to the opposite parties, service of notices and processes & Issue of notice. The aforesaid Rules are reproduced as under: 37. Notice to Opposite Party.- (1) The Tribunal shall issue notice to the respondent to show cause against the application or petition on a date of hearing to be specified in the Notice. Such notice in Form No. NCLT.5 shall be accompanied by a copy o....
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....gment together with an affidavit of service and in case of service by registered post or by speed post, file with the Registrar, or such other person duly authorised by the Registrar in this behalf, an affidavit of service of notice alongwith the proof of delivery. (4) Notwithstanding anything contained in sub-rules (1) and (2), the Tribunal may after taking into account the number of respondents and their place of residence or work or service could not be effected in any manner and other circumstances, direct that notice of the petition or application shall be served upon the respondents in any other manner, including any manner of substituted service, as it appears to the Tribunal just and convenient. (5) A notice or pro....
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.... (4) Acknowledgement under sub-rule (3) shall be filed by the party with the Registry before the date fixed for return of notice" 7. Since no one appeared on behalf of the Respondent to contest this appeal, therefore, counsel for the Appellant herself referred to an email dated 22.11.2022 as per which information was given regarding the listing of the application for the first time on 22.11.2022. The email dated 22.11.2022 is reproduced as under: 8. Counsel for the Appellant has submitted that notice of any Interlocutory Application is required to be issued in terms of Rule 37 & 38 of the Rules coupled with Rule 105 as per which copy of the application has also to be served at the time of issuance of notice, therefore, there was....
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.... parte, could have filed an application before the same court for setting aside the impugned order by recalling the same but no such effort was made at that time rather the present appeal has been filed. 11. After hearing counsel for the Appellant, we are of the considered opinion that it would be just and expedient if an application is filed by the Appellant in terms of Rule 49 of the Rules before the Adjudicating Authority who has passed the impugned order for the purpose of recalling the same on the ground that the Appellant was never served with the notice of the court and the email was only computer generated, therefore, it does not fall within the ambit of due notice as required by the Rules. 12. Consequently, the present appeal....