Hari Prakash Aggarwal vs Mr. Nilesh Sharma, RP

2.12.2024 - This Appeal is directed against the Order dated 11^th January, 2024 by which restoration application No.2 of 2024, filed by the Appellant, seeking restoration of RA 200/2023 has been dismissed. The Applicant/Appellant filed I.A. 1724 of 2021 against the Order by which her claim was rejected by the RP. The Appellant is a homebuyer. The said application remained on board for about two years and ultimately dismissed on 6^th October, 2023 for non-prosecution. On 6^th October, 2023, the following Order was passed:-

The Appellant then filed an application bearing No. RA – 200/2023. According to the Appellant, the said application was shown in the list of ordinary cases and not in the supplementary cases, therefore, it escaped her notice and the said application was also dismissed for non-prosecution on 14^th December, 2023. On 14^th December, 2023, the following Order was passed:-

In order to get the RA 200/2023 restored, the Applicant/Appellant filed another application i.e. Restoration Application No.2 of 2024. The said Application was heard by the Tribunal and dismissed on 11^th January, 2024 with the following Order:-

Counsel for the Appellant has submitted that the CIRP was initiated on 6^th September, 2019. The Appellant has filed Form ‘A’ for the claim of Rs.65 lakhs. The said claim was admitted by the IRP. He again received an e-mail from the RP in pursuance of which the Appellant submitted its claim which was also admitted by the IRP but in a subsequent list dated 29^th June, 2020, the amount claimed by the Appellant was shown as nil.

The Appellant filed I.A. 1724 of 2021 Which came to be dismissed on 6^th October, 2023 because Counsel for the Appellant, who was pursuing that application had left for US without informing the Appellant. Otherwise, Appellant would have engaged another Counsel to pursue the said application. As soon as the Appellant came to know on the website of the Tribunal on 15^th November, 2023 that the application has been dismissed for non-prosecution, on 6^th October, 2023, the Appellant filed the Restoration Application bearing R.A. No.200 of 2023 which was though listed by the Tribunal in the cause list but in the ordinary cases though it is generally listed in the supplementary list as a result of which it did not come to the notice of the Appellant and, therefore, there was no representation on behalf of the Appellant on 14^th December, 2023. The said application was also rejected for non-prosecution. The Appellant then filed the present Application No.2 of 2024 and brought all these facts to the notice of the Tribunal but the Tribunal, without giving any reason, dismissed the application. Counsel for the Appellant has submitted that strangely RA 2 of 2024 was shown in the Supplementary List this time, therefore, she had a cause to submit before the Tribunal that since RA 200 of 2024 was listed in the ordinary list, therefore, it did not come to the notice of the Counsel and also there was no deliberate attempt on the part of the Counsel not to appear in the case. The Appellant has also relied upon a decision of the Hon’ble Supreme Court in “Rafique and Another. Vs. Munshi Lal & Another” (AIR 1981 SC 1400) in which Hon’ble Supreme Court has held as following:-

Basically, the Hon’ble Supreme Court has held that fault of the party who having done everything in his power as expected of him in engaging a Counsel should not suffer because of the fault of his advocate.

On the other hand, Ms. Varsha Banerjee, Advocate appearing for the Respondent has submitted that the non-appearance on 14^th December, 2023 is on the part of the Appellant because the case was shown in the cause list, may be in the list of ordinary cases. She has further submitted that at the time of passing of the impugned Order on 11^th January, 2024, the Tribunal has observed that it has heard the Counsel, perused the application and recorded that it has not found any reason to allow the application, therefore, it does not lie in the mouth of the Counsel for the Appellant that her case has not been considered by the learned Tribunal.

Heard both the Counsel for the parties and perused the record. The only issue involved in this case is that whether the Tribunal while passing the Order dated 11^th January, 2024 has passed a speaking Order or not. In the present legal system where the party who has engaged his counsel remain supremely confident that his Counsel would appear on his behalf and submit his case, should not be penalized if the Counsel engaged by the Appellant, left for USA without informing the Appellant. We have no doubt in our mind that the parties who have been pursuing this application continuously for two years, i.e. from the date of filing till ultimately dismissed on 6^th October, 2023 would not appear deliberately. The Review Application i.e. RA 200 of 2023 which was dismissed by the learned Tribunal is also on the issue that the Counsel for the Appellant did not appear but the Appellant has given the reason for the non-appearance and said reason has not been appreciated by the learned Tribunal while dismissing Restoration Application 2 of 2024.

With the aforesaid facts and circumstances and that the Appellant has invested his hard earned money of Rs.65 lakhs and that the claim of the Appellant was once admitted by the IRP and the RP in the list dated 29^th June, 2020, the amount claimed by the Appellant was shown as nil, we are of the considered opinion that this Appeal deserves to be allowed because the impugned Order is totally non-speaking. Therefore, the Order dated 11^th January, 2024 is hereby set aside and the matter is remanded back to the learned Tribunal to decide the said application in accordance with law by passing a speaking order. Parties are directed to appear before the learned Tribunal on 10^th January, 2025.

We make it clear that we have not made any observation on the merit of the case.

The Appeal stands disposed of. Pending application, if any, also stand disposed of.