Mr. Kotikalapudi Ajay Kumar vs Chakkilam Aishwarya & Anr.

This Company Appeal has been preferred by the Appellant, under Section 421 of the Companies Act, 2013, while putting a challenge to the Impugned Order dated 18.10.2024, as it was passed in IA(CA)/308/2024, which the Appellant has preferred by invoking the provisions contained under Rule 49 of the NCLT Rules, seeking to recall the order dated 23.09.2024, as it was passed in Company Petition No. 38/241/2022.

The Company Appeal is accompanied with a Condone Delay Application being IA No. 475/2025, seeking a condonation of 45 days of delay which has chanced in preferring the Appeal, having considered the application preferred by the Appellant, for seeking condonation of delay, since, the order itself was passed on 18.10.2024 and the application for procuring the certified copy of the order was made by the Appellant on 19.11.2024 and the copy was delivered by the Registry of the Tribunal on 20.11.2024, and the Appeal was preferred by e-filing the same before the Registry of this Appellate Tribunal on 16.01.2025, the reason for explanation of delay as it has been given by the Appellant in Para-III of his Application. Though, the reason may not be much satisfactory, but since number of days of delay it falls to be well within the upper limit as prescribed under Section 421 (3), the delay of 45 days, which has chanced in preferring the Appeal would stand condoned.

Heard the Appellant on the merits of the Appeal, in the Company Appeal in question, the Appellant challenges the Impugned Order of 18.10.2024, whereby his application preferred under Rule 49 was rejected. There were two grounds which have been argued by the Learned Counsel for the Appellant i.e., 1) That the findings which have been recorded by the Tribunal perverse. 2) That there was a Publication made, is perverse as in fact no such publication was ever made.

This Appellate Tribunal called upon the Appellant to place before this Tribunal the grounds set up by him in the Memorandum of Appeal with regards to the implications of the non-publication, which he has argued before this Appellate Tribunal during his arguments. He was unable to point out any such specific ground taken, by the Appellant, in the Memorandum of Appeal rather to the contrary, if the application preferred by the Appellant under Rule 49 itself, is taken into consideration and particularly the pleading raised by him in Para-III, it is an admitted fact, at the behest of the Appellant itself, that the publication was made by virtue of an order dated 20.02.2023, directing for carrying out the publication in 2 newspapers, namely “Nava Telangana” and “Financial Express”, as per order passed by the Tribunal and not even that, the affidavit of service was too filed on record on 29.03.2023 and the matter was thereafter directed to be proceeded exparte. The aforesaid contention raised in Para-III stands fortified by the observation made in the Para-IV, of the application preferred under Rule 49, before the NCLT.

This argument extended by the Learned Counsel for the Appellant is answered against him, because there is no reason for this Appellate Tribunal to dis-believe, his own statement recorded in the application for recall, that the publication was made by an order of 20.02.2023 and thereafter the publication was actually taken on record and matter was directed to be proceeded exparte by an order dated 29.03.2023. What is interesting is that the order directing the Company Petition to proceed expartes is not an order, which has been ever sought to be recalled and that still holds good, in the eyes of law. If that be the situation, where the order directing the proceedings to be carried exparte is not being sought to be recalled. The plea of non-publication though contrary to his own pleadings in the recall application cannot be accepted.

Secondly, he attempted to develop a new case on the ground that the address which was given was a wrong address, and for the said purposes, he has drawn the attention of this Appellate Tribunal to the application dated 20.02.2023, as it finds place on record. The contents of the said application, would not at all come to the rescue of the Appellant or effect orders on recall application, for the reason being that, reference of an address is only relevant for the purposes when a service of notices attempted to be affected is upon by the Registered Post or under the process of service of notice made under law for serving of notices. Owing to what has been recorded and the reasons given in the Impugned Order of service by publication, address becomes irrelevant, this Appellant Tribunal do not fine any merits in the Appeal. The rejection of application under Rule 49 has been rightly made by the Tribunal. The Company Appeal lacks merits and the same is accordingly dismissed.