AI Drafter 
TaxTMI 
TaxTMI 
2025 (11) TMI 1347
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....s preferred in CP (IB) No. 243 / BB / 2018. 2. The consequential effect of the same had been that, the application preferred by the Respondent, under Section 43 of I & B Code, 2016, has been alleged to be erroneously allowed and consequentially it has resulted into issuing a direction against the Appellants herein, to respectively restore certain amount, as referred to in the operative portion of the impugned order, determined to be payable by each of the Appellants. 3. The Ld. Counsel for the Appellant has pressed upon the Appeal on a very limited conspicuous, submitting that though they had filed their counter affidavit prior to the date on which the Company Appeal was being heard by the Ld. Tribunal, but the counsel who was suppose to represent the cause of the Appellant was not present on the said date, owing to the fact that because of Covid-19 situation initially she was engaged in an independent practice and thereafter she has quit the same and has joined the Law Firm, due to which, on the date when the effective hearing of the Company Petition was held by the Ld. Tribunal, the Appellants were not heard, as they remained unrepresented. 4. We called upon the Responde....
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....ies to the proceedings may have the grievance that they were not provided ample of opportunity by the Tribunal or the Court to prove or establish their case. 10. The exercise of quasi judicial functions and doctrine of natural justice has had to be observed and complied with by the Tribunal(s) even if there is no procedure prescribed or as such laid down under the Statute. The duty to give an opportunity to the affected persons who represent his case necessarily involves a duty to give notice to the Applicant or to the Pleader who represents a litigant. 11. Based upon the aforesaid principles, initially I & B Code, 2016, had not included within itself any procedure except for the procedure that was prescribed under Section 424 of the Companies Act, 2013. Under section 424 of the Companies Act, the guiding principle is that, though the Tribunal(s), as constituted under the Companies Act they are basically to be governed by the principles of nature justice, subject to the provisions and principles of the Code of Civil Procedure. But, however, all the proceedings which are governed by the provisions contained under the I & B Code, 2016, the principles of natural justice and i....
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....re is substance in the other limb of this submission made by the learned Senior Counsel for the defendant-appellant. Even if the suit proceeds ex parte and in the absence of a written statement, unless the applicability of Order 8 Rule 10 CPC is attracted and the court acts thereunder, the necessity of proof by the plaintiff of his case to the satisfaction of the court cannot be dispensed with. In the absence of denial of plaint averments the burden of proof on the plaintiff is not very heavy. A prima facie proof of the relevant facts constituting the cause of action would suffice and the court would grant the plaintiff such relief as to which he may in law be found entitled. In a case which has proceeded ex parte the court is not bound to frame issues under Order 14 and deliver the judgment on every issue as required by Order 20 Rule 5. Yet the trial court should scrutinize the available pleadings and documents, consider the evidence adduced, and would do well to frame the "points for determination" and proceed to construct the ex parte judgment dealing with the points at issue one by one. Merely because the defendant is absent the court shall not admit evidence the admissibility ....
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....directed to be proceeded ex parte, in order to enable the litigant to avail an opportunity to engage another counsel. The said principle was considered by the Hon'ble Apex Court in the Judgment reported in 1981 Vol 2 SCC 788 Rafiq & Anr. V. Munshilal & Anr., the relevant extract of Para 3 is given hereunder: "3. The disturbing feature of the case is that under our present adversary legal system where the parties generally appear through their advocates, the obligation of the parties is to select his advocate, brief him, pay the fees demanded by him and then trust the learned Advocate to do the rest of the things. The party may be a villager or may belong to a rural area and may have no knowledge of the court's procedure. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of the hearing of the appeal, the personal appearance of the party is not only not required but hardly useful. Therefore, the party having done everything in his power to effectively participate in the proceedings can rest assured that he has neither to go to the High Court to inquire as to what is happening in the High Court w....
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.... not put an appearance. If that be the situation, the Hon'ble Apex Court in Civil Appeal No. 4758 / 2023 Ashok Kumar V. New India Assurance Co. Ltd. in its Para 8 has laid down that, any voluntary act conducted by the counsel engaged on behalf of any of the parties before the proceedings, if he acts whimsically on his own wisdom, the litigant is not to be made to suffer for any voluntary decision of the counsel, which is an akin situation herein also, because the date when the proceedings was taken up, the Appellants were not informed by the counsel that he would not be appearing for whatsoever genuine reason the counsel had and hence, the Appellants cause remained un-represented before the Ld. Tribunal, for which the Appellant cannot be made to suffer. The relevant para 8 is extracted hereunder: "8) In view of the foregoing, it has to be reiterated that the complaint No. 515 was filed after theft due to non-settlement of claim by the Insurance Company. The repudiation of the claim was made during the pendency of the said complaint, purportedly due to breach of condition no. 1 and 5. The said complaint was withdrawn by the advocate of the complainant on the pretext of t....