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Judgment
O R D E R
21.08.2024 - This Appeal is filed against an impugned Order dated 24th January, 2023 passed by the learned NCLT, Mumbai in CP (IB)-4082(MB)/2019.
The impugned Order is as under:-
“ORDER
Ms. Anubha Rastogi, counsel appearing for the Respondent is present through virtual hearing.
R.A. 2/2023
None appeared for the petitioner nor the hard copy of the Restoration Application bearing No. 2/2023 is available before this Bench. The above Company Petition was already dismissed for default on 30.11.2021 against which a Restoration Application bearing No. 11/2022 was filed by the petitioner which was also dismissed for non-prosecution on 24.08.2022. The conduct of the petitioner clearly shows that he is filing successive applications very casually without seriousness. Hence, the above Restoration Application is dismissed by imposing costs of Rs.1,00,000/- payable by the petitioner to the Prime Minister’s National Relief Fund.”
A bare perusal of the impugned Order would show the Restoration Application No.2 of 2023 was dismissed by imposing a cost of Rs.1 lakh payable by the petitioner to the Prime Minister’s Relief Fund. Admittedly, the said cost has not been paid so far.
Now we come to the issue of limitation as raised by the learned Counsel for the Respondent.
This impugned Order was passed on 24th January, 2023. The Appeal admittedly was not filed within 30 days but is filed within the extended period of 15 days. There is no application for condonation of delay filed along with this Appeal, hence no sufficient cause is explained to condone the delay in filing such Appeal beyond 30 days.
Secondly, we have also perused the facts of the case. A company petition CP (IB)-4082(MB)/2019 was filed on 25th September, 2019 and was listed on 17th August, 2021 for the first time before the learned Adjudicating Authority. None appeared for the Appellant on that date. It was again listed thrice and lastly on 30th November, 2021, when again none appeared for the Appellant. Accordingly the company petition was dismissed for non-prosecution. Admittedly, the Restoration Application was filed on 24th August, 2022. As per Rule 48 of the NCLT Rules 2016, such application for restoration ought to have been filed within 30 days. Rule 48(2) of the NCLT Rules, 2016 read as under:-
“(2)Where the petition or application has been dismissed for default and the applicant files an application within thirty days from the date of dismissal and satisfies the Tribunal that there was sufficient cause for his non-appearance when the petition or the application was called for hearing, the Tribunal shall make an order restoring the same:
Provided that where the case was disposed of on merits the decision shall not be re-opened.”
We have also perused the record of this Appeal. Admittedly, the first restoration application was filed on 24th August, 2022 and was dismissed on the same day itself. Yet again, the second restoration application was filed on 24.1.2023 and that too with much delay. It was dismissed for non-prosecution with cost of Rs.1 lakh as stated above. The amount of cost was never deposited. Looking at lack luster attitude of the Appellant, no discretionary relief can be granted to appellant.
The arguments of learned Counsel for the Appellant that they have been trying to settle the matter amicably, hence there was delay, would not give appellant a right to file application contravening Rule 48(2) of the NCLT Rules, 2016.
In view of the above, there is no force in Appeal and hence it is dismissed. Pending Applications, if any, shall also stand disposed of.