AI Structured Summary
Not yet generated for this judgment
Judgment
O R D E R
09.02.2024 Heard Learned Counsel for the Appellant. This Appeal has been filed against the order passed by the Adjudicating Authority dated 13.09.2023, by which Adjudicating Authority has allowed I.A. No.745 of 2022 to restore the Company Petition. The Operational Creditor has filed the Company Petition which was dismissed for non-prosecution by order dated 24.03.2021 and I.A. No.981 of 2021 was filed for recall of the said order which I.A. also came to be dismissed on 01.12.2021. The Operation Creditor on 31.12.2021 filed I.A. No.745 of 2022 for recall of the order passed on 01.12.2021, in which following prayer prayed with:
“a)The captioned petition be restored and the order dismissing the captioned petition be set aside; and
b)such further and other reliefs as this Hon’ble Tribunal may deem fit and proper.”
The Adjudicating Authority by the impugned order has allowed the application and has disposed of the application and restored the captioned Company Petition.
Learned Counsel for the Appellant challenging the order contend that in I.A. No.745 of 2022 only prayer was to restore the order dismissing the captioned company petition, hence that the company petition ought not to have been restored. He submits that at best only I.A. No. 981 of 2021 ought to have been restored. He submits that the principal of res-judicata will apply since earlier application was dismissed for non-prosecution. He submits that the subsequent application was not within 30 days.
We have considered submission of the Appellant and perused the record.
The Company Petition was dismissed for non-prosecution on 24.03.2021 for restoration of which company petition I.A. No.981 of 2021 was filed, which also got dismissed for non-prosecution on 01.12.2021. The next application I.A. No. 745 of 2022 was filed on 31.12.2021 within 30 days, hence, the application cannot be said to be barred by time.
In so far as the submission of the Appellant that Adjudicating Authority ought not to have restored the company petition and at best could have restored the company petition I.A. No. 981 of 2021 is concerned, it is clear that the company petition was dismissed for non-prosecution earlier also on 24.03.2021 and the prayer in I.A. No. 981 of 2021 was to restore the company petition, which got dismissed for default.
The Adjudicating Authority while allowing this I.A. No.745 of 2022 has allowed the company petition to be restored in which we do not find any error. There is no question of applicability of principal of res-judicata as contended by counsel for the Appellant since the applications were dismissed only for non-prosecution.
In any view of the matter present is not a case for exercise of Appellate Jurisdiction by this Tribunal in the discretion exercised by Adjudicating Authority in restoring the company petition. We do not find any merit. Appeal is dismissed.
We however, make it clear that we are not expressing any opinion on merits of the case and Adjudicating Authority shall decide the application in accordance with law.