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Judgment
19.02.2025: I.A. No.4738 of 2024 – This is an application for condonation of delay in re-filing the appeal. There is 149 days’ delay in refiling the appeal. It is alleged office of the Counsel had shifted and due to this the case file got misplaced, hence the appeal could not be filed in time, thus there is delay. Admittedly the delay in filing the appeal has since been condoned vide order dated 13.08.2024. Since none has appeared on behalf of ROC despite service and since the reasons for delay in refiling the appeal has been mentioned in the application itself, thus considering the submission, we allow the application. Delay in refiling stands condoned. Application is disposed of.
Appeal
ROC was delivered notice but failed to appear on 17.12.2024 as well as today, hence is proceeded with ex-parte.
This appeal is against an impugned order dated 30.10.2023 whereby the restoration application no. 58/23 seeking restoration of petition viz. no. 765/262/ND/2019 was dismissed for non-prosecution. The impugned order is as follows:-
“ORDER
New Rest A-58/2023
This application has been filed seeking restoration of the order dated 18.09.2023 by which the petition was dismissed for non-prosecution.
We are not satisfied with the reasons given by the Applicant for restoring the main matter. Therefore, RA-58/2023 dismissed.”
The ld. Counsel for Appellant has also taken us to the order dated 18.09.2023 whereby the Comp. Pet. No. 765/262/ND/2019 was dismissed for non-prosecution. The said order is as follows:-
“ORDER
This Petition has been filed by Vasu Crop Science Pvt Ltd. and ors.. under Section 252 of the Companies Act seeking restoration. No one appeared on behalf of the Applicant. Vide order dated 01.03.2021 this Tribunal appointed Mr. Kamal Aggarwal, Insolvency Professional as the Liquidator with a direction to complete the Liquidation process of the Company and file a report. It was directed that initial fee of Rs. I Lakh will be paid to the Liquidator from out of the Liquidation Estate. The Liquidator filed CA-209/2021 seeking a direction to the HDFC Bank to defreeze the account. Notice was issued to the HDFC Bank Despite due-service of notice, no one has entered appearance on behalf of HDFC Bank.Having regard to the facts and circumstances of the case, we do not feel it appropriate to keep this matter pending, since the Appellant is not Interested in pursuing the matter. Matter dismissed for non-prosecution. Sd/-“
It is the submission of the ld. Counsel for the Appellant the restoration application filed by the Appellant has been dismissed by a non-speaking order as the application is disposed of by a one liner viz. the Tribunal is not satisfied with reasons given by the Appellant.
It is submitted the Respondent authority vide a public notice dated 27.04.2017 had removed the name of the Appellant from the register of ROC. The appellant being aggrieved of the act of ROC had filed a revival petition before the ld. NCLT, New Delhi wherein on 01.03.2021 the ld. NCLT had appointed one Mr. Kamal Agarwal as a liquidator and directed him to furnish a certified copy of the order to the Manager of the Appellant’s Company’s Bank to defreeze the bank a/c of the appellant Company frozen because of striking off the name of the Appellant company. Such order was passed to facilitate the settlement with the creditors of the company.
The Appellant had relinquished the control of the company with the liquidator and were ready to assist him in the process of defreezing of the bank a/c of the Appellant company.
It is submitted despite requesting the bank authorities on multiple occasions, the bank authorities refused to abide by the orders of the ld. NCLT hence, an application was filed by the liquidator on 10.03.2023; upon which a notice was issued to HDFC bank, Model Town, Rohtak directing the bank officers to appear before the ld. NCLT on 25.04.2023. Such application was listed for arguments, which got postponed on two occasions as the matter could not be taken up due to paucity of time, but on 18.9.23 in the inadvertent absence of appellants the company petition was dismissed for non-prosecution.
It is the submission of ld. Counsel for Appellant in case the petition is not restored to its original number, the account of the company shall remain freezed which shall not be in the interest of the creditors of the company as there being an amount of Rs. 74 lacs approx. lying dormant in the company’s account, Rohtak in the HDFC bank.
Considering the submissions made that on 18.9.23 only an application filed by the liquidator to defreeze the company’s account was to be argued there was no reasons to dismiss the comp. petition, especially when appellant was co-operating with the liquidator. Thus, in these circumstances, if the ld. NCLT had required the presence of the appellant, it could have issued court notice to it. In the circumstances when already a liquidator was appointed leaving the company and its creditors nowhere would not be reasonable. Thus, we set aside the orders dated 18.9.23 as well as 30.10.23 and restore the company petition to its original number.
The appeal is thus allowed. All the pending applications, if any, are disposed of.