AI Structured Summary
Not yet generated for this judgment
Judgment
O R D E R
10.11.2022: Heard Learned Counsel for the parties.
This is application prays for recall of the order dated 08.04.2022 on which by following order the appeal was dismissed:
“No one appears on behalf of the Appellant even on second call. Learned Counsel for Respondent No. 1 is present. This Appeal is dismissed for non-prosecution.”
Learned Counsel for the Respondent submits that there is delay of more than 150 days in filing the Restoration Application, hence, the application deserves to be rejected.
The reasons for filing the application has been given in paragraphs 4,5,6 which is to the following effect:
“4.It is submitted that the Company Appeal (AT) (Ins.) No. 526 of 2021 was dismissed for non-prosecution on 08.04.2022 and the present restoration application has been preferred by the Applicant/Appellant after a period of 150 days on 09.09.2022.
5.It is respectfully submitted that, unlike Rule 48 of the NCLT Rules, 2016, which inter-alia stipulates the time limit of thirty days within which an application for restoration can be filed, there is no similar provision either in the NCLAT Rules, 2016 or the Insolvency Code providing for such a contingency. However, the period for filing an application for restoration/ recall of an order is 30 days in the light of Order IX Rule 4 of CPC read with the relevant provision of the Limitation Act, 1963.
6.It is further submitted that clause (g) of sub-section (2) to Section 424 of the Companies Act, 2013 states that the Appellate Tribunal for the purpose of discharging its functions under the Act and the I&B Code is vested with the same powers as are vested in a Civil Court under the CPC while trying a suit in respect of setting aside any order of dismissal of any representation for default or any other passed by it ex-parte.”
In paragraph 3 of the application it has been stated that when the matter was listed on 08.04.2022 for admission due to some technical issues in connecting CISCO Webex meeting link arguing counsel engaged by the appellant could not logged in on time, hence, when the matter was called for hearing and the appeal filed by the appellant was dismissed for non-prosecution.
Learned Counsel for the Respondent submits that under Article 122 of the Limitation Act, 1963 the application has to be filed within 30 days. Learned Counsel for the Appellant submits that the Article 122 of the Limitation Act, 1963 is not applicable in the present appeal which is governed by the NCLAT Rules, 2016. Section 5 of the Limitation Act is applicable for condoning delay in filing any application even if it is application for restoration of the appeal. We are of the view that sufficient cause has been shown by the applicant for condoning the delay in filing restoration application within meaning of Section 5 of Limitation Act, 1963.
We are of the view that, the delay in fling the application also deserves to be condoned in view of the reasons given by the counsel for the applicant.
In view of above, we allow the restoration application, recall the order dated 08.04.2022 and restore the appeal.
List this appeal on 2nd December, 2022.