Vikash Kumar Shrivastav & Anr. vs Radhey Shyam Yadav

(Hybrid Mode)

The brief facts, which are being marginally dealt with by us, while venturing upon to consider the merits of the impugned order dated 8.10.2025 that, was passed on Restoration Application No.90/ND/2025, as preferred in C.P. (IB) No.946/ND/2019.

The records reveal that, M/s. Wave Global Educational Services Pvt. Ltd., is said to have initiated the proceeding under Section 9 of the Code, before the learned Tribunal, which was directed to be admitted by an Order that was passed on 18.11.2019 and subsequently there was an order of liquidation too that was passed on 11.08.2021 in I.A. No.1313/ND/2021. The proceedings those have been carried because of the Order that was passed on I.A. No.2903/2022 in Company petition No.946/ND/2019, has consequently, resulted into allowing of the subsequent I.A. No.6492/2023 as a result thereto, holding thereof that the appellant would be responsible to contribute to the assets of the corporate debtor to the extent of Rs.1,42,06,928. The appellant’s grievance is that the said order has been proceeded ex parte against him owing to the fact that in earlier proceeding, his Counsel could not appear and the proceedings of Company Petition I.B. 946/ND/2019, was set ex-parte against him by an Order that was passed on 13.03.2023. To recall of the Order dated 02.09.2025, the appellant is said to have filed an application, being I.A. No.2903 of 2022 in IB /946/ND/2019 which was deciding the principal proceedings on 02.09.2025. The said application too was directed to be proceeded ex parte by Order of 02.09^.2025. Due to non-appearance, ultimately the application being I.A. No.4761/ND/2025 that, was preferred in IB/946/ND/2019, was dismissed for want to prosecution. Seeking its recall, the appellant had filed a Restoration Application No.90/ND/2025, which has been rejected by the impugned order. Observing thereof that, since the appellant has failed to point out any specific ground in allowing the application, the RA 90/ND/2025 do not call for any consideration and the same was accordingly rejected.

The argument of the learned Counsel for the appellant is that, if the pleadings of the restoration application in itself is taken into consideration and particularly while addressing upon this Tribunal, he has referred to the pleadings raised by him in the Restoration Application particularly that as contained in para - 3, 4 and 5 where the reason for absence has been pleaded by the appellant that, it has chanced on account of inadvertence and due to technical lapses, coupled with the fact that, the absence was not deliberate or on account of their, being slackness on the part of the Counsel who appeared and effectively participated in the proceeding on behalf of the appellant. Being it so, whatever the reason, may be that has been given by the appellant in application for restoration i.e. R.A.90/ND/2025. It was incumbent that the learned Tribunal should have addressed upon the reasons given therein and should have recorded its finding on its own merits before passing the impugned order on 08.10.2025 observing thereof showing its dissent to allow the application, on a very vague observation that has been made, that there is no specific ground made out in the application.

This reason recorded in the order itself is without considering the grounds that have been taken by the applicant. In fact, the impugned order of 08.10.2025, that has been passed by the learned Tribunal rejecting the R.A. 90/ND/2025 in itself is without consideration of any of the ground taken by the appellant in restoration application. That would render the order to be bad in the eyes of law and as against basic canons of justice, but still looking into the past facts, acts or conduct that the matter has proceeded ex pate against him while imposing upon the financial liability as a consequence of the final order dated 02.09.2025 which has already provided ex parte against the appellant, the judicial propriety required that any order, which is having the civil consequences, the party to the proceedings ought to be given an effective opportunity to have a say in the matter before any liability is fastened on the party.

Owing to the above, the orders dated 08.10.2025, as passed in R.A. No.90/ND/2025 in IB/946/ND/2019 is set aside, the restoration application as preferred by the appellant would stand allowed and as a consequence thereto, the Order dated 26.09.2025 too would stand quashed.

The matter is remitted back to the learned Tribunal to decide the proceedings on its own merit after providing an opportunity to the appellant. However, since the matter pertains to 2019 and there has been some dereliction may be that, it is on the part of the Counsel itself, a cost of Rs.3,00,000/- is being imposed on the appellant to be remitted to the Prime Minster’s Relief Fund for the reason of wastage of judicial time and for drawing the proceedings afresh and enabling the appellant to be heard on merits.

The appeal stands disposed of accordingly.

Pending I.A.s, if any, also stand closed.