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Judgment
O R D E R
Per : Justice Rakesh Kumar Jain (Oral)
31.03.2023- This appeal is directed against the order dated 27.02.2023 passed by the ‘Adjudicating Authority’ (National Company Law Tribunal, Delhi Bench, Court-III), by which applications bearing I.A. No.A41 of 2023 filed for restoration of the appeal and IA No. 1215 of 2023 filed for condonation of delay in filing the appeal for restoration were dismissed.
In brief, The Appellant filed an application under Section 9 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred as to ‘The Code’) on 18.05.2021 against M/s. Kare Partner Group India Private Limited (Corporate Debtor)for the resolution of an amount of Rs. 2,48,16,435.16/-.
The case was listed for preliminary hearing before the Adjudicating Authority on 09.09.2021 and on that day, the following order was passed:
“No one is present, at the time of virtual hearing of the matter. In the interest of justice, post this new petition after three weeks. List on 27.09.2021”
Counsel for the Appellant has also attached an order dated 23.09.2021 passed by the Adjudicating Authority, which also read thus:
“No one is present from the either side, despite the matter being called three times. In the interest of justice, list the matter after three weeks’ on 12.05.2022”
Thereafter, the case was listed on 08.07.2022 and the following order was passed:
“None appears on behalf of both the parties. In the interest of justice, the matter is adjourned by four weeks. It is made clear to the parties that if no one appears on the next date of hearing, appropriate order will be passed.”
Ultimately, the case was dismissed for non-prosecution on 12.08.2022 with the following order:-
“None appears for the parties. On 08.07.2022 also, no one had appeared on behalf of the parties. Therefore, the matter is dismissed for non-prosecution.”
The Applicant/Appellant then filed an application bearing IA No. A41 of 2023 invoking Rule 48 R/w 11 of the NCLT Rules, 2016 for recalling of the order dated 12.08.2022 and for restoration of the main petition bearing IB-498(ND)/2021. During the pendency of the said application, the Applicant/Appellant also filed an application bearing IA No. 1215 of 2023 for condonation of delay in filing the application for restoration. Both the applications were taken up together by the Adjudicating Authority on 27.02.2023, IA No. A41 of 2023 was dismissed as the Adjudicating Authority was not satisfied with the reasons given in the application for restoration and IA No. 1215 of 2023 was dismissed because of the dismissal of the IA No. A41 of 2023. Aggrieved against the said order, the present appeal has been filed.
Counsel for the Appellant has submitted that non-appearance of the Appellant before the Adjudicating Authority is not deliberate rather it was a fault of the counsel against whom the Appellant has also made a compliant before the Bar Council of Punjab & Haryana.
It is also submitted that the Appellant was unwell and admitted in the Hospital on 03.09.2022, as per prescription attached, with the application/appeal. In support of her contention, she has relied upon a decision of the Hon’ble Supreme Court rendered in the case of Rafiq & Anr. V. Munshilal & Anr. (1981) 2 SCC 788 to contend that if the party engages a counsel then it remains supremely confident that the counsel appearing for him or her behalf shall take care of the case.
We have heard counsel for the Appellant and perused the material available on record.
In this case, there are two applications i.e. IA No.A41 of 2023 which has been filed for restoration of the appeal by recalling the order dated 27.02.2023and IA No. 1215 of 2023 for condonation of delay in filing the application for restoration. It is needless to mention that limitation to file an application for restoration is governed by Article 122 of the Limitation Act, 1963 which provides that an application for restoration has to be filed within a period of 30 days from the date of dismissal. Counsel for the Appellant has submitted that a delay 194 days was caused in filing of the application bearing IA No. A41 of 2023. Therefore, IA 1215 of 2023 was filed for seeking condonation of delay.
We have perused the application IA No. 1215 of 2023 in which reason has been given for causing delay of 194 days on account of ill health of the Appellant and that some faul play by the counsel engaged by him.
Although, it is not necessary that the Applicant should explain every days delay but there is a huge delay of 194 days in filing of the application for condonation of delay for which the reasons given in para 3 to 5, are not sufficient for the purpose of condonation of delay. Therefore, in our considered opinion, the application for condonation of delay i.e IA No. 1215 of 2023 which has though been dismissed because of dismissal of IA No. A41 of 2023 deserves to be dismissed independently.
Be that as it may, even if we consider that the application i.e. IA No. A41 of 2023 is duly constituted even then there has been continues lapse on the part of the Appellant in perusing the applications before the Adjudicating Authority and for that matter there is no error committed by the Adjudicating Authority in passing the impugned order. Insofar as, the decision relied upon, in the case of Rafiq &Anr. (Supra), is concerned, there is no dispute about it but each case has to be decided on its own facts and the facts of this case are such in which discretion for the purpose of restoration of the application by recalling of the order dated 27.02.2023, cannot be exercised.
In view of the aforesaid facts and circumstances the present appeal is dismissed. No costs.