Mamtha Steels Corporation vs Yosmite Engineering Pvt. Ltd.

Heard the Learned Counsel for the Appellant. There is no representation on the side of the Respondent at the time of calling of the matter. In fact, the Respondent was served on 12.05.2022.

According to the Learned Counsel of the Appellant, the Adjudicating Authority (NCLT), Special Bench, Court No.1, Chennai had dismissed Rst. Application No.15(CHE)/2021 in CP(IBA) No.115/2019 (NCLT, Chennai) on 23.12.2021, based on the ground that the said Application No.15(CHE)/2021 was not filed within the stipulated time and not accompanied with any Application to condone the delay for filing the same. Assailing the impugned order dated 23.12.2021 in Rst. Application No.15(CHE)/2021 in CP(IBA) No.115/2019 passed by the ‘Adjudicating Authority’ (`Tribunal’), National Company Law Tribunal, Chennai, the Learned Counsel for the Appellant / Applicant submits that he had replied to the query raised by the Registry of the ‘Adjudicating Authority’ (`Tribunal’) through its communication addressed to the Registrar, NCLT, Chennai dated 01.10.2021 inter alia stating that the Rst. Application No.15(CHE)/2021 in CP(IBA) No.115/2019 (NCLT, Chennai) was filed within 10 days from the date of receipt of the certified copy of the order. In fact, the order was received by the Learned Counsel for the Appellant / Applicant only on 03.08.2021 and the Restoration Application was filed was filed within 10 days from the date of receipt of certified copy of the order.

Viewed in that perspective, according to the Appellant, the `Adjudicating Authority’ came to the erroneous conclusion by passing the impugned order dated 23.12.2021 in Rst. Application No.15(CHE)/2021 in CP(IBA) No.115/2019 (NCLT, Chennai) stating that the said `Application’ was not filed within the stipulated time and not accompanied with an Application to `Condone the Delay’. This `Appellate Tribunal’ in reality, on going through the contents of the letter dated 01.10.2021 of reply of the Appellant/Applicant’s Learned Counsel addressed to the Registrar, NCLT, Chennai, it is very clear that the dismissal order was received by the Learned Counsel only on 03.08.2021 and the Restoration Application was filed on 12.08.2021.

To put it precisely, according to the Appellant/Applicant, the Restoration Application was filed within 10 days from the date of receipt of certified copy of the order, as such, there is no need on the `Appellant/Applicant’s part to prefer the Restoration Application together with the `Condone Delay Application’.

This `Tribunal’ finds enough force and substance in the contentions advanced on behalf of the Appellant and is in agreement with the same.

Be that as it may, this `Tribunal’ on going through the impugned order dated 23.12.2021 in Rst. Application No. 15/(CHE)/2021 in CP(IBA) No.115/2019 (NCLT, Chennai) and also noticing the arguments advanced on behalf of the Appellant with care, caution and circumspection is of the considered view that the impugned order dated 23.12.2021 in Rst. Application No. 15/(CHE)/2021 in CP(IBA) No.115/2019 (NCLT, Chennai) suffers from legal infirmity in the `Eye of Law’.

Therefore, to secure `Ends of Justice’, the impugned order dated 23.12.2021 in Rst. Application No. 15/(CHE)/2021 in CP(IBA) No.115/2019 (NCLT, Chennai) is hereby set aside by this `Appellate Tribunal’.

In fine, Company Appeal (AT) (CH) INS. No. 44 of 2022 filed by the Appellant is ‘Allowed’. No costs.

Resultantly, the impugned order dated 23.12.2021 in Rst. Application No. 15/(CHE)/2021 in CP(IBA) No.115/2019 (NCLT, Chennai) filed on the file of `National Company Law Tribunal’, Special Bench, Court No.1, Chennai, is set aside for the reasons assigned in this `Appeal’. No costs.