Amit Kumar Ghidai And Anr vs Shrawasthi Agrotech Private Limited ...

IN THE MATTER OF: Amit Kumar Ghidia & Anr. ...Appellants Versus Shrawasthi Agrotech Pvt. Ltd. & Ors. ...Respondents Present: For Appellants : Mr. Lzafeer Ahmad, Mr. Talha Rahman, Advocates. For Respondents : Mr. Krishnendu Datta, Sr. Advocate with Mr. Saurav Gupta, Mr. Rajat Sinha, Advocates for R-1 to 9.

ORDER

15.12.2022: Heard Mr. Lzafeer Ahmad, Ld. Counsel for the Appellant as

well as Mr. Saurav Gupta, Ld. Counsel for the Respondent No. 1 to 9.

In the present Appeal, on 13.12.2022, we had heard Ld. Counsel for both

the parties. However, during hearing it was noticed that despite valid service of

notice Respondent No. 11 & 12 had not appeared and as such it was recorded

that if on the next date there is none appearance on behalf of unrepresented

Respondent the court may proceed ex-parte against them.

When the matter was taken up today, except contesting Respondent No.

1 to 9, other are unrepresented. Accordingly, we propose to decide the present

appeal ex-parte against unrepresented Respondent.

The present appeal under Section 421 of the Companies Act, 2013 has

been preferred against an order dated 26.09.2022, passed by National

Company Law Tribunal (herein after referred to as 'NCLT'), Kolkata Bench in

Restoration Application No. 1/KB/2022 in CP No. 759/KB/2020. -2-

By the said order Ld. NCLT, was pleased to dismiss the restoration petition

which was filed by the Appellant herein. In the present Appeal the Appellant

has sought for following reliefs:

"(a) Set aside the Order dated 26.09.2022 passed by the Hon'ble National Company Law Tribunal, Principal Bench, New Delhi in Restoration Application No. 1/KB/2022 in CP. NO. 759/KB/2020 and direct the Hon'ble NCLT to allow the Restoration Application;

(b) Consequently, direct the restoration of the Company Petition being CP No. 759/KB/2020 and the order dated 20.05.2020 passed by the Hon'ble NCLT; &

(c) Grant any other reliefs and pass any other orders as this Hon'ble Tribunal may deem fit and proper".

On perusal of the aforesaid reliefs sought for it is evident that there is no

prayer for setting aside of the first order i.e. order dated 19.04.2022 whereby

Ld. NCLT had rejected the main application i.e. CP No. 759/KB/2020 as

dismissed due to non-prosecution. Since, there is no specific pleading for

setting aside the order dated 19.04.2022, it would be difficult for us to examine

the correctness of the said order. However, the order impugned in the present

appeal is the order whereby the application for restoration was rejected. Of

course in relief a prayer has been made for restoration of the main petition,

unless by a specific pleading it is prayed for setting aside the earlier order i.e.

19.04.2022, it was difficult for us to interfere with the said order.

Company Appeal (AT) No. 201 of 2022 -3-

Ld. Counsel for the Appellant submits that the Ld. Tribunal while

dismissing the restoration petition has committed error of record. It was

highlighted by way of referring to order dated 18.11.2021 that it is true that on

the dates mentioned in the impugned order i.e. in paragraph 4, there was none

appearance on behalf of the Appellant but fact remains that in most of the

aforesaid dates i.e. 08.04.2021, 13.08.2021, 05.10.2021, 18.11.2021 &

10.02.2022 dates were fixed for considering the contempt petition.

At least on three dates i.e. 08.04.2021, 13.08.2021 & 05.10.2021, there

was none appearance in the contempt petition, not in the main petition.

Mr. Krishnendu Datta, Ld. Sr. Counsel for the Responded has pointed

out that contempt petition as well as main petition both were listed on

aforesaid dates however, there was none appearance on behalf of the Appellant.

Ld. Counsel for the Appellant by way of referring to order dated 19.01.2021

submits that by the said order it was specifically made clear that main petition

shall be taken up after disposal of the contempt petition.

Referring to order dated 19.01.2021, it was submitted that the NCLT has

clarified that main CP will be taken up for hearing only after contempt petition

is heard. It was further argued that, if on the date fixed in the contempt

petition there was none appearance on behalf of the Appellant, his none

appearance in main CP may not be taken note of.

Company Appeal (AT) No. 201 of 2022 -4-

Accordingly, it was argued that there is error of record in the impugned order

and as such the order impugned is fit to be set aside.

The Ld. Counsel for the contesting Respondent has opposed the prayer of

the Appellant, however we are of the opinion that only on technicality, right of a

party may not be forfeited. Whatever order is to be passed it may be passed on

merit. Further, if fault has been committed by a Counsel the party may not be

allowed to suffer. In that view of the matter we are of the opinion that the

present appeal can be disposed of by way of setting aside the order dated

26.09.2022, granting liberty to the Appellant to file fresh restoration petition. If

such petition is filed Ld. NCLT is requested to consider the same and take

lenient view in the matter so that instead of dismissing the main petition on

technicality, it may be decided on merit.

It goes without saying that the Ld. NCLT while deciding the restoration

petition may not be influenced by earlier orders or even order passed by this

Tribunal.

With the above observation and directions, the Appeal stands disposed

of.

[Justice Rakesh Kumar] Member (Judicial)

[Dr. Ashok Kumar Mishra] Member (Technical)

sr/gc Company Appeal (AT) No. 201 of 2022