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Judgment
O R D E R
Per : Justice Rakesh Kumar Jain: (Oral)
23.02.2023: This appeal is directed against the order dated 08.07.2022, passed by the ‘Adjudicating Authority’ (National Company Law Tribunal, New Delhi, Court-II), by which Petition bearing No. (IB) 31 /2021 filed by the Financial Creditor (Appellant) under Section 7 of the ‘Insolvency and Bankruptcy Code, 2016’ (in short ‘Code’), was dismissed for non-prosecution and the order dated 18.08.2022 by which IA No. 3863 of 2022 filed in IB-31/2021 for recalling of the order dated 08.07.2022, was also dismissed.
Counsel for the Appellant has submitted that the ‘Adjudicating Authority’ has taken a pedantic view in firstly dismissing the petition vide order dated 08.07.2022 and secondly while dismissing the application dated 18.08.2022 for recalling of the order dated 08.07.2022. It is submitted that the cause of non-appearance of the Appellant on 08.07.2022 was on account of poor connectivity of the internet as the hearing was being conducted on virtual mode.
We have heard counsel for the Appellant and perused the material available on record. The Appellant has filed an application under Section 7 of the Code against the ‘Mothers Pride Education Institution Pvt. Ltd. (Corporate Debtor) for the resolution of an amount of Rs. 15,00,000/- plus interest @ 16.5% p.a. It has come on record that the Appellant did not appear either in person or through her Counsel on 10.05.2022 when the case was called up for hearing. and the following order was passed:
“None appears for the Applicant. Ld. Counsel for the Respondent appears. Last opportunity is given to the Applicant to argue the matter. List on 08.07.2022”
Thereafter, when the case came up for hearing on 08.07.2022, neither the Appellant nor her counsel put in appearance and ultimately the Petition filed by the Appellant under Section 7 of the Code was dismissed for non-prosecution. The order passed on 08.07.2022 read as under:
“Mr. Jai Mohan Lal, Ld. Counsel appeared on behalf of the Respondent. Despite repeated calls, no one appeared for the Applicant. Even on the previous date of hearing 10.05.2022, no one appeared on behalf of the Applicant, which shows that conduct of the Applicant that they are not interested in pursuing the matter. Hence, the present petition IB-31/2021 stands dismissed for want of prosecution. File be consigned to the record room.”
The Appellant, thereafter, filed IA No. 3863 of 2022 for recalling of the order dated 08.07.2022. The said application was dismissed on 18.08.2022 with the following order:
“This IA has been moved on behalf of the Appellant for recalling the order dated 08.07.2022 stating that due to poor net connectivity, the Counsel could not cause his appearance. Accordingly, the matter was dismissed for want of prosecution on 08.07.2022. Heard the Ld. Counsel and perused the relevant order. From perusal of record, it is seen that on 10.05.2022, no one had appeared on behalf of the Applicant. In the interest of justice, the matter was adjourned to 08.07.2022, but even on the said date, no one appeared on behalf of the Applicant though the Counsel for the Respondent was present. However, it is being contended by the Ld. Counsel for the Applicant that his presence is marked. Whereas the order dictated in the open court records otherwise. The order dated 08.07.2022 clearly records that since on two consecutive dates including on 08.07.2022, no one had appeared on behalf of the Applicant, the main matter was dismissed. Taking into consideration the above facts and circumstances of the case, we find no merit in the present applicant. Accordingly, the present IA stands dismissed with no order as to costs. “
Counsel for the Appellant though argued vehemently that the non-appearance was not deliberate but because of non-connectivity of the Internet but he has failed to show any evidence about the non-connectivity of the internet on the day when the case came up for hearing on 10.05.2022 & 08.07.2022 when the Appellant failed to appear before the Adjudicating Authority. It is needless to mention that if the Appellant chooses not to appear before the Court, the Court has no other option but to dismiss the case for non-prosecution presuming that the Appellant does not have interest any more in perusing the appeal.
In the aforesaid facts and circumstances of the case, we do not find any error in the impugned order.
At this stage, Counsel for the Respondent has submitted that in another matter i.e. Yes Bank Limited Vs. Mothers Pride Education Institution Pvt. Ltd., an application filed under Section 7 of the Code by the Yes Bank Limited as Financial Creditor, registered as IB – 21 (ND)/2022 before the National Company Law Tribunal, New Delhi (Court-II), has been admitted and the CIRP proceedings have been initiated on 11.10.2022.
Be that as it may, in view of the aforesaid observations, we do not find any merit in the present appeal and the same is hereby dismissed. No order as to costs.