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Armour Security (India) Private ... vs Ambience Private Limited

National Company Law Appellate Tribunal16 October 2023Ashok Bhushan

Ratio decidendi

The rule this decision rests on

Where a restoration application seeks revival of an earlier application dismissed for non-prosecution, its prayer is to be read as seeking revival of that earlier application, so that the earlier and restoration applications are not to be treated as having the same prayer merely because they are connected; a Tribunal rejecting restoration on the ground that the prayers are the same, without finding that the prayers in fact coincide, commits an error, and sufficient ground exists to restore the dismissed application where the restoration application is confined to reviving it.

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

1NATIONAL COMPANY LAW APPELLATE TRIBUNALPRINCIPAL BENCH, NEW DELHICompany Appeal (AT) (Insolvency) No. 1270 of 2023&I.A. No. 4373 of 2023IN THE MATTER OF:

Armour Security (India) Pvt. Ltd. ...Appellant

Versus

Ambience Pvt. Ltd. ...Respondents

Present: For Appellant : Mr. Krishnendu Datta, Sr. Advocate with Mr. Karan G., Mr. Ankur Aggarwal, Mr. Nitin Sharma, Ms. Varsha Himatsingka, Advocates For Respondents : Mr. V Anush Raajan, Mr. Pradyumn Yadav, Advocates

ORDER

16.10.2023: I.A. No. 4373 of 2023. This is an application praying for

condonation of delay of 99 days in refiling the Appeal.

2. Learned Counsel for the Appellant submits that multiple defects were

marked which took time in curing the defect hence time was taken in refiling

the Appeal.

3. Sufficient cause shown. Refiling delay is condoned.

4. Heard Learned Counsel for the parties.

5. This Appeal has been filed against the Order dated 21st April, 2023

passed by the Adjudicating Authority by which order the Adjudicating

Authority has rejected restoration application being I.A. No. 101 of 2022. 2

6. In the present case, Section 9 Application was dismissed noticing that

CIRP has commenced against the Corporate Debtor on 13.12.2021. An

Application was filed for restoration being I.A. No. 81 of 2022 by the Appellant

praying for revival of the CIRP which stood dismissed for non-prosecution on

10.11.2022. Appellant thereafter filed a Restoration Application No. 101 of

2022 in which application, following prayers were made:

"It is, therefore, most respectfully prayed that this Hon'ble Tribunal may graciously be pleased to allow the present application under Rule 11 of NCLT Rule, 2016; and permit the restoration/revival of the application Rest. A-81/2022 filed under rule 11 of the NCLT Rules, 2016."

7. The said application came for consideration before the Adjudicating

Authority on 21st April, 2023 and by order in para 6, this Restoration

Application was rejected.

8. Learned Counsel for the Appellant submits that prayers made in the

Application I.A. No. 101 of 2022 were not same as was in I.A. No. 81 of 2022

and the Adjudicating Authority erroneously rejected the Application.

9. Learned Counsel for the Respondent submits that the Adjudicating

Authority has given reason in para 6 that the applicant did not challenge the

Order before the Higher Authority hence the Application for the same is

misconceived.

10. We have heard and considered the submissions of Learned Counsel for

the parties and have perused the record.

Company Appeal (AT) (Insolvency) No.1270 of 2023 3

11. In I.A. No. 101 of 2022, the prayer was made to revive the Application

I.A. No. 81 of 2022 which was dismissed for non-prosecution. We are not in

agreement with the observation made by the Adjudicating Authority that

prayer in both the Application are same. In Restoration Application 101 of

2023 prayer was for revival of I.A. No. 81 of 2022. It cannot be said that prayer

in I.A. No. 81 of 2022 are same. We thus are of the view that sufficient ground

was made out to allow restoration Application No. 101 of 2022 and revive I.A.

No. 81 of 2022.

12. We allow the Appeal, set aside the Order, revive the I.A. No. 81 of 2022

which may be heard and decided by the Adjudicating Authority. Parties are at

liberty to place the order for fixing a date.

The Appeal is disposed of.

[Justice Ashok Bhushan] Chairperson

[Barun Mitra] Member (Technical)

Basant/nn

Company Appeal (AT) (Insolvency) No.1270 of 2023

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