# In the matter of Bhimsen Apat vs. Kalinga Enterprises Pvt. Ltd. & Anr.

> NCLAT judgment dated 2023-10-19. Citation: TCN-2023-NCLAT-00111. The appeal was filed against the order passed by the Adjudicating Authority, which admitted a…

- **Court:** NCLAT
- **Order date:** 19 Oct 2023
- **Citation:** TCN-2023-NCLAT-00111
- **Category:** IBC
- **Source page:** https://caseease.in/cases/ibc/nclat-new-delhi/bhimsen-apat-vs-kalinga-enterprises-pvt-ltd-anr-13ec458f

## Summary

### Background

The appeal was filed against the order passed by the Adjudicating Authority, which admitted a Section 9 application filed by the Operational Creditor. The appellant contended that the Adjudicating Authority did not issue any notice to the appellant before proceeding ex-parte. The Adjudicating Authority had initially taken up the Section 9 application on August 24, 2022, and directed the respondents to file Vakalatnama, authorization, board resolution, and reply affidavit. Subsequently, on September 19, 2022, the Adjudicating Authority directed to proceed ex-parte.

## Facts

Bhimsen Apat filed an appeal against an order by the Adjudicating Authority that admitted a Section 9 application by Kalinga Enterprises Pvt. Ltd. The Adjudicating Authority proceeded ex-parte against Bhimsen Apat, who claims he did not receive proper notice. The Adjudicating Authority first took up the Section 9 application on August 24, 2022, and directed the respondents to file Vakalatnama, authorization, board resolution, and reply affidavit. Subsequently, on September 19, 2022, the Adjudicating Authority directed to proceed ex-parte. Bhimsen Apat instructed an advocate to file Vakalatnama in November 2022. The appellant deposited Rs. 1,16,25,583.01/- as required under Section 9 of the I&B Code, 2016. The appellant also filed an application to recall the order

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## Issues and analysis

### Issue 1: Whether the Adjudicating Authority erred in proceeding ex-parte against the Appellant without …

**Ratio:** Rule 37 of the NCLT Rules, 2016 mandates that the Adjudicating Authority shall issue

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**Reasoning:** The court reasoned that the Adjudicating Authority proceeded to direct ex-parte hearing

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**Interpretation:** Rule 37 is interpreted to mean that even if advance notice was served by the

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**Application:** The court applied the ratio to the facts by noting that the Adjudicating

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## Parties

- **Judges:** Ashok Bh…; Barun M…
- **Appellants:** Bhimsen…
- **Respondents:** MAA Manasha Devi…; Kalinga Enterprise…

## Timeline

- **2022-08-24 — Section 9 Application…**: The Adjudicating Authority first took the Section 9 Application on 24th August, 2022, and…
- **2022-09-19 — Ex-Parte…**: The Adjudicating Authority…

## Legal provisions

- [Insolvency and Bankruptcy Code, 2016, Section 9 — Application for initiation of corporate insolvency…](https://caseease.in/legal-provisions/insolvency-and-bankruptcy-code-2016/section-9)

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