TaxTMI 
TaxTMI 
2025 (8) TMI 1006
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....acts necessary to be noticed for deciding the appeal are: 2.1 Appellant and her husband Mr. Rahul Chaudhary are the Personal Guarantors of the Corporate Debtor - Servel India Pvt. Ltd. The Canara Bank, Respondent herein has extended financial facilities to the Corporate Debtor to which personal guarantee was executed both by the Appellant and her husband, Mr. Rahul Chaudhary. 2.2 Canara Bank, the Financial Creditor after giving a notice in Form B to both Appellant and her husband filed Section 95 application. In Section 95 application filed against the Appellant, Company Petition (IB) 334/ND/2024 was registered and in the application under Section 95 filed against the husband of the Appellant, Company Petition (IB) 335/ND/2024 was registered. 2.3 Both (IB) 334/ND/2024 and (IB) 335/ND/2024 were listed as Item No.210 and 211 on 13.11.2024. On 13.11.2024, Advocate Mayank Bhargava appeared for both Appellant and her husband in (IB) 334/ND/2024 and (IB) 335/ND/2024 and prayed for two weeks' time to file reply to the report of the Resolution Professional. The Resolution Professional undertook to serve complete set of application along with all annexures to the learned counsel fo....
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....f judicial precedence we deem it appropriate to reject the application." 3. Learned counsel for the Appellant challenging the order submits that same counsel was appearing on behalf of both of the Personal Guarantors, Appellant and her husband and both matters were listed on 13.11.2024 and learned counsel for the Appellant appeared and prayed for time to file reply and on the next date i.e. 06.12.2024 the appearance of Appellant's counsel is noticed in (IB) 335/ND/2024 i.e. husband's case but on the same day noticing that none appearing on behalf of the Appellant in (IB) 334/ND/2024, the order was passed to proceed ex-parte against the Appellant. It is the case of the Appellant that on 06.12.2024, both cases were listed as Item No.205 and 206 and when counsel for Appellant has appeared for husband and informed about his illness and time was allowed and matter was fixed for 27.01.2025, there was no occasion for learned counsel for the Appellant to not appear in the case of the wife whose non-appearance is noted. It is submitted that order dated 06.12.2024 was uploaded only on 13.12.2024 and 06.12.2024 being Friday, on next working day i.e. on 09.12.2024 again noticing absence of ....
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....List on 06.12.2024." 7. Similar order was also passed in (IB) 335/ND/2024 i.e. husband's case. On next date, 06.12.2024, both the matters were again listed together at Item No.205 and 206. In (IB) 335/ND/2024 i.e. husband's case, Advocate Mayank Bhargava appeared, whose presence was noticed and following order was passed on 06.12.2024: "ORDER IA-4498/2024: Ld. Counsel appearing for the creditors submitted that the RP has not made a copy of report available to the creditor. Let the report be made available to the creditor within one week from today. Ld. Counsel for the personal guarantor submitted that the reply could not be filed within the given time, as the personal guarantor is unwell. He also sought to produce the medical prescription to buttress his plea regarding personal guarantor. The medical prescription produced before us is kept on record. As prayed by Ld. Counsel for the personal guarantor, further one week time is granted to file the reply. List on 27.01.2025." 8. On same date, 06.12.2024, although presence of counsel for the Appellant Mr. Mayank Bhargava was noted but noticing earlier order dated 13.11.2024, Court had directed to proce....
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.... "6. That the Husband of the Applicant had not been keeping well and has been ill. In November, 2024 and December, 2024, Applicant's husband was suspected of thalassemia and other related ailments and has become extremely weak and frail. He was not able to do any chores or move around much. It is owing to Applicant's Husband's ill health that neither the Husband nor the Applicant who was taking care of him could meet the undersigned counsel and prepare the reply. Copy of the medical diagnosis dated 22.11.2024 has been annexed herewith as Annexure-E. Copy of the medical diagnosis dated 04.12.2024 has been annexed herewith as Annexure-F." 12. The Adjudicating Authority in the order has not returned any finding as to why the statement of the counsel that he appeared in both the cases and prayed for time and due to illness of the husband, which is recorded in order dated 06.12.2024, wife also could not prepare reply, the cause given in the application praying for recall has not been adverted to. The Adjudicating Authority in the impugned order has observed that Appellant was asked to given his defence on the merits of Section 95 application, where the Appellant pr....