Ashok Alco-Chem Limited Vs. M/S Unimark Remedies Limited [CP No. 10/(MAH)/2017] - Synopsis
Team SoOLEGAL 29 Jan 2021

In this case, Ashok Alco-Chem Limited Vs. M/S Unimark Remedies Limited [CP No. 10/(MAH)/2017],  insolvency settlement pursuant to section 9 of the Insolvency Bankruptcy Code, 2016, was instituted on the basis of non-payment of the debt owing to the operational creditor. The petitioner had issued a statutory notice pursuant to Sections 433 and 434 of the Companies Act,1956, and filed a winding-up petition before the High Court. The debtor company objected that a notice under section 8 of the code had not been given before the petition was filed. On 24th February 2017, the National Company Law Tribunal had held that the debtor company could not raise such an objection, since this petition seems to have been transferred from the High Court due to a shift of jurisdiction. The Tribunal had also held that, as the petitioner had complied with all legislative criteria and that there was no conflict between the financial creditor and the corporate debtor in relation to the debt argument hence, the petition had been approved and the insolvency resolution specialist had been appointed. The corporate debtor filed an application for withdrawal/review of the order of 24th February, 2017 on the ground that the conflict between the parties had been settled and that the application had been filed before the order had been informed.
The Bench had stated that, when orders are passed in the open court on the date of the hearing after notice has been given to the corporate debtor, such order cannot be considered ex-part order, except that it is not the case that the Bench does not pass orders until the corporate debtor appears. The Bench had also stated that, the matter had been transferred from the Hon'ble High Court on the basis of a notification dated 7th December 2016. On the basis of that notification, it is understood that all applications which have been transferred pursuant to that notification must be viewed as applications under Section 7, 9 or 10 of the Insolvency Bankruptcy Code, 2016. Therefore, it is not necessary to issue a further notice under Section 8 of the Code in the transferred case, as the requirement for issuing a notice under Section 8 of the Code does not apply. Furthermore, there is no provision mentioned under any section of law to recall its own orders, and also no regulation is being mentioned to recall orders, and thus the application was rejected by the Bench.

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