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Judgment
O R D E R
15.12.2022: Heard Mr. Lzafeer Ahmad, Ld. Counsel for the Appellant as well as Mr. Saurav Gupta, Ld. Counsel for the Respondent No. 1 to 9.
In the present Appeal, on 13.12.2022, we had heard Ld. Counsel for both the parties. However, during hearing it was noticed that despite valid service of notice Respondent No. 11 & 12 had not appeared and as such it was recorded that if on the next date there is none appearance on behalf of unrepresented Respondent the court may proceed ex-parte against them.
When the matter was taken up today, except contesting Respondent No. 1 to 9, other are unrepresented. Accordingly, we propose to decide the present appeal ex-parte against unrepresented Respondent.
The present appeal under Section 421 of the Companies Act, 2013 has been preferred against an order dated 26.09.2022, passed by National Company Law Tribunal (herein after referred to as ‘NCLT’), Kolkata Bench in Restoration Application No. 1/KB/2022 in CP No. 759/KB/2020. By the said order Ld. NCLT, was pleased to dismiss the restoration petition which was filed by the Appellant herein. In the present Appeal the Appellant has sought for following reliefs:
“(a)Set aside the Order dated 26.09.2022 passed by the Hon’ble National Company Law Tribunal, Principal Bench, New Delhi in Restoration Application No. 1/KB/2022 in CP. NO. 759/KB/2020 and direct the Hon’ble NCLT to allow the Restoration Application;
(b)Consequently, direct the restoration of the Company Petition being CP No. 759/KB/2020 and the order dated 20.05.2020 passed by the Hon’ble NCLT; &
(c)Grant any other reliefs and pass any other orders as this Hon’ble Tribunal may deem fit and proper”.
On perusal of the aforesaid reliefs sought for it is evident that there is no prayer for setting aside of the first order i.e. order dated 19.04.2022 whereby Ld. NCLT had rejected the main application i.e. CP No. 759/KB/2020 as dismissed due to non-prosecution. Since, there is no specific pleading for setting aside the order dated 19.04.2022, it would be difficult for us to examine the correctness of the said order. However, the order impugned in the present appeal is the order whereby the application for restoration was rejected. Of course in relief a prayer has been made for restoration of the main petition, unless by a specific pleading it is prayed for setting aside the earlier order i.e. 19.04.2022, it was difficult for us to interfere with the said order.
Ld. Counsel for the Appellant submits that the Ld. Tribunal while dismissing the restoration petition has committed error of record. It was highlighted by way of referring to order dated 18.11.2021 that it is true that on the dates mentioned in the impugned order i.e. in paragraph 4, there was none appearance on behalf of the Appellant but fact remains that in most of the aforesaid dates i.e. 08.04.2021, 13.08.2021, 05.10.2021, 18.11.2021 & 10.02.2022 dates were fixed for considering the contempt petition.
At least on three dates i.e. 08.04.2021, 13.08.2021 & 05.10.2021, there was none appearance in the contempt petition, not in the main petition.
Mr. Krishnendu Datta, Ld. Sr. Counsel for the Responded has pointed out that contempt petition as well as main petition both were listed on aforesaid dates however, there was none appearance on behalf of the Appellant.
Ld. Counsel for the Appellant by way of referring to order dated 19.01.2021 submits that by the said order it was specifically made clear that main petition shall be taken up after disposal of the contempt petition.
Referring to order dated 19.01.2021, it was submitted that the NCLT has clarified that main CP will be taken up for hearing only after contempt petition is heard. It was further argued that, if on the date fixed in the contempt petition there was none appearance on behalf of the Appellant, his none appearance in main CP may not be taken note of. Accordingly, it was argued that there is error of record in the impugned order and as such the order impugned is fit to be set aside.
The Ld. Counsel for the contesting Respondent has opposed the prayer of the Appellant, however we are of the opinion that only on technicality, right of a party may not be forfeited. Whatever order is to be passed it may be passed on merit. Further, if fault has been committed by a Counsel the party may not be allowed to suffer. In that view of the matter we are of the opinion that the present appeal can be disposed of by way of setting aside the order dated 26.09.2022, granting liberty to the Appellant to file fresh restoration petition. If such petition is filed Ld. NCLT is requested to consider the same and take lenient view in the matter so that instead of dismissing the main petition on technicality, it may be decided on merit.
It goes without saying that the Ld. NCLT while deciding the restoration petition may not be influenced by earlier orders or even order passed by this Tribunal.
With the above observation and directions, the Appeal stands disposed of.