AI Structured Summary
Not yet generated for this judgment
Judgment
ORDER
26.09.2024: This order shall dispose of two applications bearing Restoration Application No. 8 of 2024 filed in CA (AT) (CH) (Ins) No. 229 of 2023 and Restoration Application No. 9 of 2024 filed in CA (AT) (CH) (Ins) No. 232 of 2023 for recalling of the order dated 04.07.2024 by which both appeals have been dismissed for non-prosecution.
In brief, the present two appeals have been filed by the Suspended Director of the Corporate Debtor against admission of the application filed under Section 7 of the Code by the National Company Law Tribunal vide its order dated 18.07.2023.
After the appeal was filed, the Appellant made a request on 04.01.2024 for filing an application to amend the grounds of appeal to incorporate some more legal grounds as well. The case was adjourned to 12.01.2024. On 12.04.2024 the case was adjourned because the application filed by the Appellant was not listed and the case was adjourned to 18.01.2024. On the adjourned date, there was a request for an adjournment by the Respondent to file reply to the application and the case was adjourned to 23.01.2024. It so happened that the case was not listed on 23.01.2024 and was listed on 19.03.2024. On the said date the Appellant appeared and the case was adjourned to 01.04.2024 on the request of the Appellant. On 01.04.2024 the Appellant again prayed for an adjournment and the case was adjourned to 03.05.2024. However, the case was not listed again on 03.05.2024 and was listed on 04.07.2024. On the said date i.e. 04.07.2024 the Appellant failed to appear, therefore, this court passed the order of dismissal for non-prosecution.
Notice in the application was issued to which reply and rejoinder has been filed.
Counsel for the Appellant has submitted that non-appearance on the part of the Appellant on 04.07.2024 was neither intentional nor deliberate as the Appellant missed the date on 04.07.2024 because it was not specified by this Court in its order but was only shown in the cause list for that day. It is submitted that the Appellant otherwise has been seriously pursuing this appeal and had been appearing on the previous dates.
On the other hand, Counsel for the Respondent has submitted that the CIRP in this case had commenced on 21.07.2023. The appeal was first listed on 07.08.2023. Pleadings were completed on 16.08.2023, thereafter, the Appellant took time on 04.01.2024 to amend the grounds of appeal. It is submitted that CIRP is at the advanced stage because the resolution plan is approved by the CoC and the same is pending before the Adjudicating Authority for its approval. He further submitted that the reason given by the Appellant that he had missed the date on 04.07.2024 because on 03.05.2024 the date was not given should not be accepted because the same thing happened on 23.01.2024 when the case was not listed and it was adjourned to 19.03.2024 when the appellant had appeared.
In reply to this argument, Counsel for the Appellant has submitted that the very fact that the Appellants have been pursuing this appeal and appearing on all the dates earlier would show that the Appellant had been vigilant enough and there is no intentional or deliberate omission on their part. It is further submitted that the date 04.07.2024 was not given to the Appellant otherwise the appellant would have appeared on that date also.
We have heard Counsel for the parties and after examining the record are of the opinion that there is sufficient reason given by the Appellant for recalling of the order dated 04.07.2024 by which both the appeals have been dismissed for non-prosecution. The very fact that the Appellants were appearing on all the previous dates and had also appeared on 19.03.2024 when the case was not listed on 23.01.2024 indicates that the Appellant has been vigilant enough to pursue this appeal but per chance it so happened that on 03.05.2024 when the case was not listed and no date was given and was later listed on 04.07.2024 the date appears to have been missed by the Appellant, which cannot be said to be an intentional avoidance of the Court.
In view of the aforesaid discussion, there is merit in the present application and the same is thus allowed but subject to payment of Rs. 1 Lac for each appeal as cost to Respondent No. 1 by way of Demand draft. The order dated 04.07.2024 is hereby recalled. Both appeals are restored to their original number.
Company Appeal (AT) (CH) (Ins) No.229/2023 & 232 of 2023
These appeals were listed before the NCLAT Chennai. On 03.10.203 the following order was passed by this Bench which was presided over by Justice M Venugopal. The order read as under:-
“ORDER (Virtual Mode) 03.10.2023: Hon’ble Mr. Justice M. Venugopal, Member (Judicial) is rescuing from Hearing, the Comp. App (AT) (CH)(Ins) No. 229 of 2023 and Comp. App (AT)(CH)(Ins) No.232 of 2023. Hence, the ‘Office of the Registry’, is directed to ‘List’ these ‘Appeals’, before the Hon’ble ‘Appropriate Bench’, in which Hon’ble Mr. Justice M. Venugopal, Member (Judicial) is not a ‘Member’, of course, after obtaining necessary Orders on Administrative side from the Hon’ble Chairperson, NCLAT, New Delhi.
[Justice M.Venugopal] Member (Judicial)
[Shreesha Merla] Member (Technical)”
In view of the aforesaid order, this case has been listed before this bench at NCLAT New Delhi. Since, both the members, namely, Justice M. Venugopal, Member Judicial and Shreesha Merla, Member Technical have demitted office after completion of their tenure and that the complete record is lying at NCLAT Chennai, therefore, it would be just and expedient if the matter is put up before the NCLAT Chennai for its adjudication. Therefore, list before the NCLAT Chennai on 15.10.2024 after obtaining necessary orders from Hon’ble the Chairperson.