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Judgment
ORDER
This Company Appeal was listed on 25.09.2024, for consideration of Restoration Application being Restoration Application No.01/2024, the order was dictated in the open court. The then stenographer Mr. Elanchezian who had taken the dictation, later quit his job and thus the order couldn’t be transcribed. Hence, this is a fresh order which is being rendered on the Restoration Application.
The appeal in question stood dismissed for want of prosecution on 30.09.2022. Seeking its recall, a restoration application was preferred by the appellant, being Restoration Application No. 01/2024.
The said Restoration Application No. 01/2024, sought the recall of the order dated 30.09.2022, whereby the Company Appeal and the pending application were dismissed for want of prosecution and the Company Appeal itself was dismissed for default.
The said Restoration Application No. 01/2024, was preferred for recall of the order 30.09.2022, by filing the same before the registry on 05.11.2022. When the same came up for consideration on 06.08.2024, the Restoration Application No. 01/2024, too was dismissed for want of prosecution. Seeking its recall, the Appellant has filed an Interlocutory Application No.15/2024, in Restoration Application No. 01/2024. In the Interlocutory Application No.15/2024, the appellant has come up with the case that, when the said Application was listed on 30.09.2022, he couldn’t put in appearance, owing to the fact that, he could not connect to links for the proceedings before the Hon’ble Tribunal as available in the website of the NCLAT, and thus, he could not attend the proceeding.
In IA No.15/2024, as filed on 21.08.2024, the appellant has prayed for the recall of the order dated 30.09.2022, dismissing the Company Appeals 89 & 90 of 2020 as well as, the order of 06.08.2024 dismissing the Restoration Application IA No 01/2024 both on ground of want of prosecution, and further, to restore the appeal to its original number.
The Ld. Counsel for the respondent submits that since there being a recurring dismissal of the appeal for want of prosecution, Restoration Application ought not to be considered by this tribunal, as it reflects to the laxity on part of the appellant in contesting the proceedings and consequently a deliberate intent on part of the applicant to delay the proceedings. We are of the view that, merely an intention to delay the proceedings alone, cannot be taken as a reason not to consider the Restoration Application No.15/2024, seeking recall of the order of 06.08.2024, as well as 30.09.2022, for restoration of appeal to its original number. The argument extended by the respondent that, there have been recurrent dismissals an account of default and that it has been done with the intention to delay the proceedings cannot be taken as to be a reason so as to reject the Restoration Application, as IA No. 15/2024, has to be considered exclusively and independently on its own merits. In IA No.15/2024, the reason for absence on 06.08.2024 has been elaborately given in the application where it has been contended by the Appellant/ Applicant, that he could not be connected due to technical glitch.
Owing to the settled principles, that IA No.15/2024, seeking recall of the order of 06.08.2024, and IA No.1/2024, seeking recall of the order 30.09.2022, will have to be independently considered on their own merits, owing to the grounds taken therein. The issue under consideration in the main Company Appeal pertains to the proceedings under Section 221, 241, 242, 246 and 339 of the Companies Act, to be read with Section 272 (1)(3), 271(c) and 273(1) of the Companied Act, 2013 and the matter requires an adjudication on merits. The absence of the counsel on 30.09.2022, and subsequently on 06.08.2024, since not being deliberate or intentional, the IA No.15/2024 would stand allowed and the order dated 06.08.2024, dismissing the Restoration Application No. 01/2024 for want of prosecution would stand recalled. The Restoration Application No. 01/2024, would stand restored to its original number.
Heard the counsel for the parties on the Restoration Application No.01/2024. Being satisfied with the reasons given therein Restoration Application No. 01/2024, the same too would stand allowed. Consequently, the order of 30.09.2022, dismissing the Company Appeal for want of prosecution would stand recalled and the appeal would stand restored to its original number.
At this juncture, it is pertinent to mention that the dismissal of Restoration Application for want of prosecution can be restored by a subsequent Restoration Application as it will be maintainable, in the light of the full bench judgment of Madhya Pradesh High Court, as reported in 1976 SCC online MP,15. Thus, considering the facts in its entirety the appeal would stand restored to its original number.