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Judgment
O R D E R
19.01.2024: Heard learned counsel for the Appellant. This Appeal has been filed against order dated 03.09.2023 by which order I.A. No.869 of 2022 filed by the Respondent herein for restoration of the Company Petition, which was dismissed for non-prosecution on 06.01.2022, has been allowed by the Adjudicating Authority.
Learned counsel for the Appellant challenging the order submits that the application was filed with delay of 52 days and there was no application for condonation of delay. It is submitted that reply filed by the Appellant to the application has not been considered and there was no explanation for non-appearance for last four dates by the applicant.
We have considered the submissions of learned counsel for the Appellant and perused the record.
Copy of the application has been brought on the record as Annexure K to the appeal. In so far as delay condonation is concerned, applicant in Para 9 of the application has prayed following:
“9.The Applicant submits that any delay in filing this application should be condoned as the Advocate for the Applicant was hospitalized and restriction imposed due to Covid Pandemic.”
There being prayer for condonation of delay, mere fact that no separate application for condonation of delay has not been filed shall not prohibit the Adjudicating Authority to condone the delay, which was prayed by the applicant. The Adjudicating Authority has allowed the application in view of the peculiar facts and circumstances, which has been observed in Para 7 of the judgment. In Para 7 of the judgment following has been observed:
“7.This Bench finds that the Applicant was not present on 05.03.2021, 10.6.2021, 11.08.2021 and 08.09.21, accordingly, this bench dismissed the present matter for non-prosecution vide its order dated 6.1.2022. Thereafter, the present Application for restoration of CP could not be taken up on various occasions due to paucity of time or technical glitches. The matter was last taken up on 28.07.2023, wherein the parties were directed to complete the pleadings, however, the counsel for Corporate Debtor had not drawn the attention of this Bench, the CP already stands dismissed on 6.1.2022. Though, there have been consistent non-appearance(s) on the part of the Applicant, we also find that the Counsel was not medically fit when the order dismissing the petition came to be passed. Considering all these facts, this Bench consider that it shall be appropriate to grant one final opportunity to the Applicant to present its case, accordingly this Bench allows the present application, and order the restoration of C.P.(IB)3704/MB/2019 at its original number. It is clarified that this restoration is being allowed on peculiar facts of the case. The Applicant may note that this Petition shall be dismissed again if it fails to be represented on following date of hearings.”
The non-appearance on four earlier dates plea of Covid has been taken by the Applicant, it is also on the record that there was hospitalisation of applicant for some period. Taking in consideration all facts and circumstances, the Adjudicating Authority has allowed the restoration application. In view of the aforesaid, in exercise of Appellate Jurisdiction this this Tribunal may not interfere in the impugned order.
It is informed that 25.01.2024 has already been fixed in the matter. We request the Adjudicating Authority to decide the Company Petition at an early date. With these observations, we dismiss this appeal.