Mirosa Marine Private Limited (Earlier ... vs Ms. Kanak Jani Resolution Professional ...

Mirosa Marines Pvt. Ltd ...Appellant Versus Kanak Jani Resolution Professional of Doshi ...Respondent Holdings Pvt. Ltd. Present: For Appellant : Mr Amish Tandon, Ms Anushree Kulkarni, Advocates. For Respondents : Appearance not maked.

ORDER

(Hybrid Mode)

03.09.2026 This Tribunal had initially issued notices to the

Respondent, by an order passed by us on 30.04.2025. Despite of service

of notice, the Respondent had not appeared. Hence, by our order dated

28.08.2026, the respondents directed to proceed ex-parte.

2. Since the order of proceedings to be carried ex-parte against the

Respondent is persisting even today on record, coupled with the fact that

even today none appears for the Respondent, even in today's

proceedings, we proceed to hear the appeal on merits.

3. The controversy at hand has its genesis when the Appellant filed

an IA being I.A. No. 28/2023, before the Ld. NCLT, Mumbai Bench,

invoking the provisions contained under Section 60 (5) of the IBC Code.

While raising various contentions qua the furnishing of the documents

in original, which was anticipated to be supplied to the Petitioner by the

Appellant, and since, according to the Appellant, there was an apparent

dereliction, he was constrained to file an application to the said effect on

02.12.2022.

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4. We make it very clear that, at this stage, while we are dealing with

the impugned order, we are not dwelling upon the merits of the

application, i.e., I.A. No. 28/2023, for the reason, being that its

determination made by the Ld. Tribunal vide its order of 26.11.2024

itself is not a determination on merits, for the reason being that, on the

date when the proceedings were taken before the Ld. Tribunal, the

Appellant was not present and, in that eventuality, the finding which

has been recorded in the order dated 26.11.2024, disposing of I.A. No.

28/2023 qua the relief sought by the Appellant for supplying of the

documents, would be treated to be an order which has been passed

without hearing the Appellant.

5. So far as the decision taken on I.A. No. 28/2023 is concerned, it

is argued that apparently, the record reflect that the Appellant was not

heard, nor the Ld. Tribunal has made any expressions nor any finding

qua the grounds taken by the Appellant in his I.A. No. 28/2023 has been

considered or addresses upon merits.

6. Be that as it may, the Appellant preferred an I.A. No. 472/2025,

invoking the provisions contained under Rule 11 of IBC Code, praying

that since the decision dated 26.11.2024 taken on I.A. No. 28/2023 was

ex-parte and without hearing the Appellant, due to this absence, he

prayed that the order dated 26.11.2024 may be recalled and the

application, I.A. No. 28/2023, may be reconsidered to be decided on its

own merit. For the said purpose, the Appellant, in the application, has

carved out various grounds and, particularly, as argued by the Ld.

Page 2 of 5 Counsel for the Appellant, the grounds taken in Para 5.4 and 5.5, it was

owing and in context to attach the genuineness to the prayers sought

by Appellant in I.A. No. 28/2023, which Appellant expected that it ought

to have been decided on merits, even in case if there was a denial to

grant the relief after hearing the Appellant. Having no done so, the

necessity arose for the Appellant to prefer I.A. No. 472/2025 praying for

recall of order 26.11.2024.

7. When this application came up for consideration before the Ld.

Tribunal, the same has been adjudicated upon by the impugned order,

wherein the Ld. Tribunal has proceeded to reject the application seeking

recall of the order dated 26.11.2024, on the ground that while dealing

with the prayer that was sought by the Appellant in I.A. No. 28/2023 on

merits of the matter, and particularly while making its observations qua

the pleadings raised by the Appellant in Para 5.4 to the application, I.A.

No. 472/2025, the Tribunal took a view that besides there is no list of

documents that was placed on record. And that, the order of 26.11.2024

records the presence of the Applicant at the time of disposal of IA No. 28

of 2023, where specific averment was said to have been stated in that

regard. However, if we scrutinized the order of 26.11.2024 itself,

apparently, it does not at any point show that the Appellant was present

on the date when the I.A. No. 28/2023 was decided and, if at all the

observation made by the Ld. Tribunal in the impugned order if that is

taken into consideration and if there was any justification that on the

date of the hearing of I.A. No. 28/2023, and even it is taken that the

Appellant was present on the 26.11.2024, in that eventuality, it was

Page 3 of 5 incumbent upon the Tribunal to have recorded atleast its reasoning for

accepting or not accepting the contentions raised by the Appellant in his

I.A. No. 28/2023 should have recorded its finding on merits. In the

absence of the same it would initiate the order 26.11.2024, in the eyes

of law being perverse.

8. Be that as it may. At the stage, when the Tribunal was seized with

the I.A. No. 472/2025, where the Appellant has sought the recall of the

order dated 26.11.2024, at least under basic norms of adjudication, it

required that the Ld. Tribunal should have only answered the

justification for invocation of Rule 11 of the NCLT Rules on the ground

of the Appellant contending that he was not present on 26.11.2024,

rather than proceeding to make observations on merits of the matter

pertaining to the aspect that documents have already been handed over

this was beyond the scope of recall I.A. No. 472/2025.

9. The Learned Tribunal, while passing the impugned order on I.A.

No. 472/2025, has exceeded over the scope of the recall application

itself, while determination that was placed for consideration on

10.02.2025, which was confined to the consideration of I.A. No.

472/2025 and not on I.A. No. 28/2023 which was yet to be decided on

merits after hearing the Appellant.

10. On its limited ground itself that the invocation of Rule 11 by filing

IA 472/2025, was to justify that the Appellant is provided an effective

hearing, the order dated 26.11.2024, since itself shows that the

Appellant was not present, and even if it is presumed that he was

present, and it was at least judicially incumbent upon the Tribunal to

Page 4 of 5 have recorded the reasons for accepting or not accepting the contentions

raised in I.A. No. 28/2023. We feel that the order of rejection of the recall

application, I.A. No. 472/2025, suffers from procedural vices and hence

calls for an interference.

11. We quash the order dated 10.02.2025 remit the matter back to

the Ld. Tribunal to consider the application, I.A. No. 28/2023, itself on

merits, afresh after providing an opportunity to the Appellant on merits

of the matter, subject to the condition that the Appellant provides an

effective assistance to the Tribunal to decide the I.A. No. 28/2023.

Subject to the above the Company Appeals stands allowed.

[Justice Sharad Kumar Sharma] Member (Judicial)

[Arun Baroka] Member (Technical)

[Indevar Pandey] MT/RR Member (Technical)

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