Global Best Foundries Pvt Ltd & Anr. vs D Suseela

The Instant Company Appeal has been preferred by invoking the provisions contained under section 421 of the Companies Act, being aggrieved as against the Impugned Order dated 06.09.2023 by virtue of which the Learned Adjudicating Authority has rejected the IA No. 83/CHE/2023, as it was preferred by the Appellant for taking on record the order passed in the proceedings in CP No. 151/CHE/2019 instead of going into the intricacies of the application to take the document on record, at this stage, the Learned Counsel for the Appellant has submitted that the Company Petition had preceded Exparte against him as back as on 26.09.2019, it’s after an expiry of about 3 years period, that he has filed Recall Application only on 13.09.2021, which was numbered as IA No. 10/2021, after the delay of about 738 days. But however, admittedly as per the documents on records, the IA No. 10/2021 filed for seeking Recall of the orders to set aside the Exparte order was withdrawn by the Appellant on 20.10.2022. After the withdrawal Order, the Appellant is said to have file a fresh application yet again only 04.05.2023, being IA No. 83/2023, which has been rejected by the Impugned Order under challenge.

The Counsel for the Respondent had vehemently opposed the Company Appeal, on the ground that the Appellate jurisdiction under section 421, should not be exercised by this tribunal in the matter particularly of this type, for the reason being that any interference by this Tribunal in the exercise of the Appellate jurisdiction under section 421 to be read with 211 would be an abuse of process, looking to the conduct of the Appellant for not diligently participating in the proceedings before the NCLT. There could not be any doubts with regard to the said preposition and to the manner and diligence with which the Appellant has taken up the proceeding before the NCLT and it cannot be ruled out it was a measure adopted by him to delay the proceedings, in way or another because even after withdrawing of the earlier Recall Application, present application was preferred only on 20.10.2022, the Subsequent Application that is an Instant IA No. 83/2023 on 04.05.2023 which to would be beyond the period of limitation.

The Learned Counsel for the Respondent submits that the Application seeking Recall of the Exparte order should not be considered by this Tribunal for the reason being that when it was filed before NCLT, it was not supported by any Delay Condonation Application, which is attempted to be answered by the Appellant’s Counsel, as for a reason that the delay has been explained in the Para 9 & 15 of the Application itself.

This argument extended by the Learned Counsel for the Appellant regarding the explanation of the Delay on the basis of contents of the Para 9 & 15 of the IA No. 83/2023, after having gone through it, the argument is not be accepted by this Tribunal because upon the scrutiny of pleadings of Para 9 & 15, it’s only a narration of fact of the case and not a narration or reason of delay in preferring a belated application after withdrawal on 20.10.2022. The Order directing to proceed Exparte would be falling within an ambit of the provisions contained under Order 9 Rule 7 of C.P.C. and apparently it’s the conduct of the Appellant which too has to be taken into consideration when he had not deliberately and diligently participated in the proceedings since 18.03.2019, due to recurring orders being passed for proceeding Exparte against him.

But at the stage when the Tribunal is considering the Application for recall, the Tribunals or the Court are not supposed to venture into and speculate on the past conduct of the applicant and the application because it’s only the contents of the present Application which has to be considered for the purposes of considering the Recall Application, Exclusively based on the equity though the Appellant does not have a case for interference in this Appeal, yet in the wider in respect of justice to have a Lis decided on merits, this Appeal would stand allowed subject to the payment of cost of Rs. 1,00,000/- to be paid to the Petitioner of the Company Petition, which is to be remitted by the Appellant to the petitioner within the period of 10 days from today.

If the cost is not paid within the afore said period, Company Appeal would be deemed to be dismissed. And is further requested that if cost is paid and proved to be paid the NCLT, Chennai bench would consider and decide the Company Petition itself being CP/15/2019 on within 6 months from today. It is hope and trusted that the Appellant would be diligently without taking any unnecessary adjournments and would participate in the proceedings owing to the above restrictions imposed upon the Respondent the Company Appeal would stand allowed. The Impugned Order rejecting recall application would stand quashed.