Shreesha Merla ORDER
1. Heard Mr. Sathish Parasaran, the Learned Senior Counsel appearing for the 'Appellant'/'Bank' and the Learned Counsel appearing for the '1st Respondent'/'Liquidator' at the 'Admission' stage itself.
2. The 'Appellant'/'Bank' has preferred the instant Comp. App. (AT) (CH) (Ins) No. 446/2022, before this 'Tribunal' as an 'Aggrieved Person' being dissatisfied with the 'impugned order' dated 03.03.2022 in IA(IBC)/1341(CHE)/2020 in IBA/243/2019, passed by the 'Adjudicating Authority', (National Company Law Tribunal, Special Bench - II, Chennai), whereby and whereunder, the 'Appellant'/'Bank' was directed to refund a sum of Rs. 11,30,40,034/- to the 'Corporate Debtor's' Account in the 'Corporate Insolvency Resolution Process'.
3. According to the 'Appellant'/'Bank' a sum of Rs. 11,30,40,034/- is not part of the 'Consortium Facility', vide 'Working Capital Consortium Agreement' dated 30.09.2016, but, part of a 'Non-Consortium Facility' of Rs. 10,00,00,000/- granted to the 'Corporate Debtor', on 29.11.2017. Furthermore, it is projected on the side of the 'Appellant'/'Bank', that the 'Appellant', 'right to Live', and 'set off', were also preserved by the 'Consortium Agreement' under 'Article 5'. Added further, the sum was granted to the 'Appellant' on 19.12.2018 before the commencement of the 'Corporate Insolvency Resolution Process' (CIRP).
4. The clear cut stand of the Learned Counsel for the 'Appellant'/'Bank' is that 'Notices' were sent to the 'Appellant'/'Bank', not only to the 'Head Office', in 'Mumbai' and also the 'Registered Office', in 'Nungambakkam in Chennai' and the 'Notices', sent to the 'Bank', were received by the 'Bank'. However, the reason attributed on behalf of the 'Appellant'/'Bank' before this 'Tribunal', is that due to the 'Covid-19 Pandemic', the 'Lockdown' was imposed, which had affected the 'Appellant'/'Bank', substantially, as a result of which, the 'Appellant'/'Bank' was not in a position, to enter in appearance in IA(IBC)/1341(CHE)/2020 in IBA/243/2019 and in IA(IBC)/1341(CHE)/2020 in IBA/243/2019 'Appellant'/'Bank' was proceeded ex parte and the same was 'Allowed' on 03.03.2022, by the 'Adjudicating Authority', ('Tribunal'), and the 'Order' was received by the 'Appellant'/'Bank' only on 28.03.2022.
5. The 'primordial plea' of the Learned Counsel for the 'Appellant'/'Bank' is that the 'Appellant'/'Bank' has a good case/cause, on merits of the matter and before the 'Adjudicating Authority', ('Tribunal'), IA(IBC)/419(CHE)/2022 in IBA/243/2019 was filed to 'set aside' the 'impugned order dated 03.03.2022, passed by the 'Adjudicating Authority', (National Company Law Tribunal, Chennai Bench).
6. In this connection, the 'Grievance' of the 'Appellant'/'Bank'/'Petitioner' is that the 'Application' came to be 'dismissed' by the 'Tribunal' on 18.10.2022 without taking into consideration 'Rule 49 of the NCLT Rules, 2016, which provides for 'sufficient cause' in regard to the 'non-appearance of the parties'.
7. Aggrieved by the 'Order' of the 'Adjudicating Authority', (National Company Law Tribunal, Chennai Bench) dated 03.03.2022 in IA(IBC)/1341(CHE)/2020 in IBA/243/2019, wherein the 'Appellant'/'Bank' was set ex parte, the 'Appellant' has filed the instant Comp. App. (AT) (CH) (Ins) No. 446/2022.
8. Per contra, it is the 'submission' of the Learned Counsel for the 'Respondent'/'Liquidator', of M/s. Thiru Arooran Sugars Limited that the 'Petitioner'/'Appellant' projected IA(IBC)/419(CHE)/2022 in IA(IBC)/1341(CHE)/2020 in IBA/243/2019 seeking to set aside the order dated 03.03.2022 in IA(IBC)/1341(CHE)/2020 in IBA/243/2019 on the file of this 'Tribunal'.
9. The Learned Counsel for the 'Respondent' brings it to the 'Notice' of this 'Tribunal', that the 'Appellant', wherein IBA/243/2019 filed by the State Bank of India under Section 7 of the Insolvency & Bankruptcy Code, 2016 against the 'Corporate Debtor' was 'a........