The New Delhi bench of the National Company Law Appellate Tribunal ( NCLAT ) email does not amount to notice as per National Company Law Tribunal (NCLT ) Rules and is directed to apply as per Rule 49 for recalling orders.
Suniel Dhandhania & Anr. the appellants are Members of the Suspended Board 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 (‘the Adjudicating Authority’) by which an application bearing of 2020 filed under Section 19 of the Insolvency and Bankruptcy Code, 2016 (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 despite service of notice.
The Appellant has submitted that the application under Section 7 of the Code was filed by M/s.Arrow Engineering Ltd. (Financial Creditor) against Golden Tobacco Ltd (Corporate Debtor) which was admitted on 07.06.2022 and Vichitra Narayan Pathak was appointed as Insolvency Resolution Professional(IRP).
It was submitted that during the pendency of the proceedings, IRP applied Section 19 of the Code in which the first order was passed on 22.11.2022. It was directed the suspended Management of the Corporate Debtor to hand over all the requisite documents/records of the Corporate Debtor to the IRP within one week.
Counsel for the Appellant has referred to Rules 37, 38 & 105 of the NCLT Rules, 2016 about notice to the opposite parties, service of notices and processes & Issue of notice.
Since no one appeared on behalf of the Respondent to contest the appeal, therefore, counsel for the Appellant herself referred to an email per which information was given regarding the listing of the application for the first time on 22.11.2022.
Counsel for the Appellant has submitted that notice of any Interlocutory Application is required to be issued in terms of Rules 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 no notice by law which is stated to have been served upon the Appellant herein.
As per Rules 49, in case, the Appellant being the Respondent in the application who was proceeded against ex parte could have applied to 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.
A two-member bench comprising Justice Rakesh Kumar Jain, Member (Judicial) and Naresh Salecha, Member (Technical) directed to apply terms of Rule 49 of the Rules before the Adjudicating Authority has passed the impugned order to recall 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.
The NCLAT extended the liberty to the Appellant to file an appropriate application, in terms of Rule 49 of the Rules, for recalling the impugned order.
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