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Judgment
O R D E R
13.10.2022: Heard Mr. Saurav Kirpal, learned Sr. Counsel assisted by Mr. Tarun Donadi, learned counsel for the Appellant and Mr. Manu Chaturvedi, learned counsel for the Respondent No.1.
The present application has been filed with a prayer to restore Competition Appeal (AT) No. 12 of 2022 which stood dismissed on 01.09.2022 due to non-prosecution.
Ld. Sr. Counsel for the Appellant has argued that the earlier case was not adjourned on the prayer of the Appellant, rather it was adjourned on the ground that Ld counsel for the private Respondent informed the court that the matter was sub judiced before the Hon’ble Bombay High Court. He further submits that repeatedly on other dates also, the case was adjourned for the same purposes and this was the reason that on last date i.e. 01.09.2022, the Appellant thought that it will be adjourned and as such prayer was made for adjournment which was refused and appeal stood dismissed due to non-prosecution.
Ld Sr. Counsel for the Appellant also tried to persuade the court on merit of the case. However, since the present application is for the purposes of restoration, there is no reason to examine any merit of the case.
In the Restoration Application on oath in para 6 statements have been made besides oral submissions made by Ld Sr. Counsel for the Appellant that the case was adjourned due to the reason that matter was pending before the High Court. Statement made in para 6 of the Restoration Application reproduced herein below:
“It is stated that this Hon'ble Tribunal vide Order dated 01.09.2022 dismissed the above captioned appeal filed by the Appellant due to non- prosecution. In this regard, it is submitted that the Appellant has been zealously pursuing the present appeal. On the first date of hearing of the Appeal i.e.01st April, 2022, the Respondents 2-4 orally informed the Bench that Respondent No.2, 3 and 4 respectively had filed writ petitions in the Bombay High Court bearing Writ Petition No. 3860 of 2022, Writ Petition No. 3845 of 2022 and Writ Petition No. 3755 of 2022 (Collectively Writs), challenging the jurisdiction of Respondent No.1 to pass the Prima Facie order. In view of the pendency of these writs, the Hon’ble Bench deemed it fit to adjourned the matter to 06.04.2022 without issuing notice. Subsequently, the matter was adjourned on 06.04.2022, 18.04.2022, and 05.07.2022 for the same reason. The Appellant was present through counsel on all these dates. On 05.07.2022, the next date of hearing was fixed by this Hon'ble Appellate Tribunal for 01.09.2022.”
In para 6 as stated above, it has been stated that on 06.04.2022, 18.04.2022 and 05.07.2022, the case was adjourned for the same reason i.e. due to the pendency of the Writ Petition. Whereas the order sheet does not reflect the fact which has been stated either orally or in para 6 of the Application. It would be appropriate to incorporate all the orders which have been passed in the present Competition Appeal (AT) No. 12 of 2022 in seriatim as follows:
“01.04.2022: The ‘Office of the Registry’ is directed to List the instant Appeal on 6th April, 2022 under the caption ‘For Admission (Fresh Case).
06.04.2022: Due to paucity of time the matter could not be taken up. Hence, the ‘Office of the Registry’ is directed to List the matter on 18th April, 2022.
18.04.2022: The ‘Office of the Registry’ is directed to List this matter on 05.07.2022.
05.07.2022: Learned Counsel for the Appellant in the presence of Shri Manu Chaturvedi, Learned Counsel for R-1 with the consent of Learned Counsel for remaining Respondents requests for listing this appeal after 10th August. List this matter on 01.09.2022.”
01.09.2022: Today again when Appeal was called, a prayer was made by the learned counsel for the Appellant for granting adjournment. On the last date i.e. 05.07.2022 also same prayer was made for adjourning the appeal on behalf of the appellant. The prayer for adjournment is refused. The Appeal stands dismissed due to non-prosecution.
First order dated i.e. on 01.04.2022 whereby the ‘Office of the Registry’ was directed to list the instant Appeal on 6th April, 2022 under the caption ‘For Admission (Fresh Case)’. Thereafter, on 06.04.2022 whereby the matter could not be taken due to paucity of time. Hence, the ‘Office of the Registry’ was directed to list the matter on 18th April, 2022. Again on 18th April, 2022 order sheet reflects that the ‘Office of the Registry’ was directed to list this matter on 05.07.2022. On 05.07.2022, on the prayer made by Learned Counsel for the Appellant, the case was adjourned. Since Ld Sr. Counsel, at the time of pressing this restoration petition has emphatically argued that on 05.07.2022, it was not adjourned only on the prayer of Ld counsel for the Appellant rather it was adjourned on the request of other side also, it is necessary to again reproduced the order dated 05.07.2022 as follows:
“05.07.2022: Learned Counsel for the Appellant in the presence of Shri Manu Chaturvedi, Learned Counsel for R-1 with the consent of Learned Counsel for remaining Respondents requests for listing this appeal after 10th August. List this matter on 01.09.2022.”
Subsequently on 01.09.2022, when appeal was again called, a prayer was made by Ld counsel for the Appellant for granting adjournment. This court noticed that on the last date also same prayer was made and the case was adjourned and as such this court did not entertain the prayer for adjournment and dismissed the appeal due to non-prosecution.
On perusal of order dated 05.07.2022, itself it is evident that it was adjourned on the prayer of Ld. Counsel for the Appellant. Of course, this Court has recorded the consent of other side.
Since in para 6 of the application, it appears that incorrect statement has been made that regularly the appeal was adjourned awaiting the order in the Writ Court, we do not find any ground to entertain the present application.
The Restoration Application stands dismissed.