TaxTMI 
TaxTMI 
2023 (9) TMI 1387
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....ate Insolvency Resolution Profess against the Corporate Debtor on the ground that the Corporate Debtor failed to make required payment as per the Demand Notice. (ii) On 17.09.2021, the Adjudicating Authority directed to issue notice to the Corporate Debtor and 15.11.2021 was the date fixed for next hearing. (iii) The Operational Creditor took steps for service by email as well as Registered Post. Notice by email was sent at the email address reflected in the Ministry of Corporate Affairs, Company Master Database. (iv) On 15.11.2021, the Adjudicating Authority directed for substituted service of notice in two local newspapers. In pursuance to order dated 15.11.2021, notices were issued twice. (v) On 22.02.2022, the Adjudicating Authority noticed the publication of notice and Corporate Debtor having not appeared directed the case to proceed ex-parte. (vi) On 09.07.2022, the Corporate Debtor filed an IA for recall of order dated 22.02.2022. (vii) On 11.07.2022, the Adjudicating Authority notices that counsel for the Corporate Debtor submits that an IA has already been filed for condoning delay which is not listed on the said date. ....
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....not appear and filed application for recall of order which was kept in default to prolong the issue. Even in the application filed for recall, there is no sufficient ground, except ground that summons received were misplaced. It is further submitted that advance payment was made to the Corporate Debtor to the tune of Rs.2,83,60,000/-, however, the Corporate Debtor failed to return it, hence, the agreement was terminated. Appellant in its audited accounts has admitted advance received from the Operational Creditor. 4. We have considered the submissions of learned counsel for the parties and perused the record. 5. The first order which was passed by the Adjudicating Authority on 17.09.2021 is as follows: "ORDER The Court is convened through Video Conference. 1. Counsel for the Petitioner is directed to issue notice to the Corporate Debtor as well intimate the next date of hearing. 2. Court Notice addressed to the Corporate Debtor has been handed over to the Counsel for the Petitioner for effecting service on the Corporate Debtor by all available means, viz., Speed Post, Registered Post, Hand Delivery, Email delivery to the registered email ID of th....
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....ate Debtor craves the leave and indulgence of this Ld. Tribunal to allow it to file a written reply in detail to the Petition filed against it by the Operational Creditor. 4. As per the order sheets obtained from the NCLT website, the Corporate Debtor has not appeared on 15.11.2021, 20.01.2022, 22.02.2022 and 20.04.2022 before this Ld. Tribunal in the present proceedings due to the legitimate and genuine reason as stated in the above para. It is submitted that the present proceedings have not reached the stage of appointment of IRP and hence, the Operational Creditor will therefore not be in any way prejudicially affected by setting aside/ recalling the ex parte order. 5. It is submitted that the Corporate Debtor does not have a copy of the Petition along with annexures filed by the Operational Creditor and hence, humbly prays that this Ld. Tribunal may be pleased to pass relevant orders to make the same available to the Corporate Debtor." 8. On 11.07.2022, which was the next date in the matter, counsel appeared on behalf of the Corporate Debtor and submitted that an IA has been filed, which is not listed. The Adjudicating Authority on 11.07.2022 passed followi....
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....iled in the year 2021, where repeatedly notices were issued to the Corporate Debtor. 12. Appellant's submission is that the Adjudicating Authority ought to have first considered the application filed by the Corporate Debtor for recall of order dated 22.02.2022 and thereafter proceeded to decide the Section 9 application. Application for recall being not listed could not be heard by the Adjudicating Authority although application for recall has been brought on the record by the Appellant as Annexure 3 to the appeal. To satisfy ourselves of the bonafide of the Appellant, we proceed to examine reasons given in the application for recall of the order dated 22.02.2022. 13. In Para 2 of the application, it has been stated that summons issued to the Corporate Debtor were inadvertently misplaced, hence, there was delay in appointment of counsel for representing the Corporate Debtor. The summons was issued to the Corporate Debtor by order dated 17.9.2021 and substituted service by publication was directed on 15.11.2021. The above statement makes it clear that summons was received by the Corporate Debtor before 15.11.2021, when substituted service was directed. There is no reason given....