Asianet Digital Network Privet Limited vs Competition Commission Of India & Ors
- CitationRestoration Application No. 11 of 2022
Ratio decidendi
The rule this decision rests on
A restoration application seeking to set aside a dismissal for non-prosecution cannot be entertained where the applicant's sworn averments are contradicted by the court's own order sheets; the Tribunal will not restore on the basis of a factual account that the record does not bear out. Where the order sheet records that an adjournment was granted on the applicant's own prayer, a claim that the adjournment was occasioned by the pendency of proceedings elsewhere or by the other side is not accepted in the absence of support in the record, and the court proceeds on the record as it stands. Since the restoration application rests on an incorrect statement of the earlier proceedings, the applicant has not shown sufficient cause, and the application is dismissed without examining the merits of the underlying appeal.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
NATIONAL COMPANY LAW APPELLATE TRIBUNAL, Principal Bench, New Delhi Restoration Application No. 11 of 2022 in Competition App. (AT) No. 12 of 2022
IN THE MATTER OF: Asianet Digital Network Pvt. Ltd. ...Appellant Vs. Competition Commission of India & Ors. ....Respondents Present: For Appellant: S.Kirpal, Sr. Advocate, Mr. Tarun Donadi and Mr. Vishnu Suresh, Advocates
For Respondent: Mr. Manu Chaturvedi, Advocate for R1. Mr. Davender Prasad, Dy. Director for CCI.
ORDER
13.10.2022: Heard Mr. Saurav Kirpal, learned Sr. Counsel assisted by Mr.
Tarun Donadi, learned counsel for the Appellant and Mr. Manu Chaturvedi,
learned counsel for the Respondent No.1.
The present application has been filed with a prayer to restore Competition
Appeal (AT) No. 12 of 2022 which stood dismissed on 01.09.2022 due to non-
prosecution.
Ld. Sr. Counsel for the Appellant has argued that the earlier case was not
adjourned on the prayer of the Appellant, rather it was adjourned on the ground
that Ld counsel for the private Respondent informed the court that the matter
was sub judiced before the Hon'ble Bombay High Court. He further submits that
repeatedly on other dates also, the case was adjourned for the same purposes
Restoration Application No. 11 of 2022 in Competition App. (AT) No. 12 of 2022 1 and this was the reason that on last date i.e. 01.09.2022, the Appellant thought
that it will be adjourned and as such prayer was made for adjournment which
was refused and appeal stood dismissed due to non-prosecution.
Ld Sr. Counsel for the Appellant also tried to persuade the court on merit
of the case. However, since the present application is for the purposes of
restoration, there is no reason to examine any merit of the case.
In the Restoration Application on oath in para 6 statements have been
made besides oral submissions made by Ld Sr. Counsel for the Appellant that
the case was adjourned due to the reason that matter was pending before the
High Court. Statement made in para 6 of the Restoration Application reproduced
herein below:
"It is stated that this Hon'ble Tribunal vide Order dated
01.09.2022 dismissed the above captioned appeal filed
by the Appellant due to non- prosecution. In this regard, it
is submitted that the Appellant has been zealously
pursuing the present appeal. On the first date of hearing
of the Appeal i.e.01st April, 2022, the Respondents 2-4
orally informed the Bench that Respondent No.2, 3 and 4
respectively had filed writ petitions in the Bombay High
Court bearing Writ Petition No. 3860 of 2022, Writ Petition
No. 3845 of 2022 and Writ Petition No. 3755 of 2022
Restoration Application No. 11 of 2022 in Competition App. (AT) No. 12 of 2022 2 (Collectively Writs), challenging the jurisdiction of
Respondent No.1 to pass the Prima Facie order. In view of
the pendency of these writs, the Hon'ble Bench deemed
it fit to adjourned the matter to 06.04.2022 without
issuing notice. Subsequently, the matter was adjourned
on 06.04.2022, 18.04.2022, and 05.07.2022 for the same
reason. The Appellant was present through counsel on all
these dates. On 05.07.2022, the next date of hearing was
fixed by this Hon'ble Appellate Tribunal for 01.09.2022."
In para 6 as stated above, it has been stated that on 06.04.2022,
18.04.2022 and 05.07.2022, the case was adjourned for the same reason i.e.
due to the pendency of the Writ Petition. Whereas the order sheet does not reflect
the fact which has been stated either orally or in para 6 of the Application. It
would be appropriate to incorporate all the orders which have been passed in
the present Competition Appeal (AT) No. 12 of 2022 in seriatim as follows:
"01.04.2022: The 'Office of the Registry' is directed to List the instant Appeal on 6th April, 2022 under the caption 'For Admission (Fresh Case).
06.04.2022: Due to paucity of time the matter could not be taken up. Hence, the 'Office of the Registry' is directed to List the matter on 18th April, 2022.
Restoration Application No. 11 of 2022 in Competition App. (AT) No. 12 of 2022 3 18.04.2022: The 'Office of the Registry' is directed to List this matter on 05.07.2022.
05.07.2022: Learned Counsel for the Appellant in the presence of Shri Manu Chaturvedi, Learned Counsel for R-1 with the consent of Learned Counsel for remaining Respondents requests for listing this appeal after 10th August. List this matter on 01.09.2022."
01.09.2022: Today again when Appeal was called, a
prayer was made by the learned counsel for the
Appellant for granting adjournment. On the last date
i.e. 05.07.2022 also same prayer was made for
adjourning the appeal on behalf of the appellant. The
prayer for adjournment is refused. The Appeal
stands dismissed due to non-prosecution.
First order dated i.e. on 01.04.2022 whereby the 'Office of the Registry'
was directed to list the instant Appeal on 6th April, 2022 under the caption 'For
Admission (Fresh Case)'. Thereafter, on 06.04.2022 whereby the matter could
not be taken due to paucity of time. Hence, the 'Office of the Registry' was
directed to list the matter on 18th April, 2022. Again on 18th April, 2022 order
sheet reflects that the 'Office of the Registry' was directed to list this matter on
05.07.2022. On 05.07.2022, on the prayer made by Learned Counsel for the
Appellant, the case was adjourned. Since Ld Sr. Counsel, at the time of pressing
Restoration Application No. 11 of 2022 in Competition App. (AT) No. 12 of 2022 4 this restoration petition has emphatically argued that on 05.07.2022, it was not
adjourned only on the prayer of Ld counsel for the Appellant rather it was
adjourned on the request of other side also, it is necessary to again reproduced
the order dated 05.07.2022 as follows:
"05.07.2022: Learned Counsel for the Appellant
in the presence of Shri Manu Chaturvedi,
Learned Counsel for R-1 with the consent of
Learned Counsel for remaining Respondents
requests for listing this appeal after 10th August.
List this matter on 01.09.2022."
Subsequently on 01.09.2022, when appeal was again called, a prayer was
made by Ld counsel for the Appellant for granting adjournment. This court
noticed that on the last date also same prayer was made and the case was
adjourned and as such this court did not entertain the prayer for adjournment
and dismissed the appeal due to non-prosecution.
On perusal of order dated 05.07.2022, itself it is evident that it was
adjourned on the prayer of Ld. Counsel for the Appellant. Of course, this Court
has recorded the consent of other side.
Restoration Application No. 11 of 2022 in Competition App. (AT) No. 12 of 2022 5 Since in para 6 of the application, it appears that incorrect statement has
been made that regularly the appeal was adjourned awaiting the order in the
Writ Court, we do not find any ground to entertain the present application.
The Restoration Application stands dismissed.
[Justice Rakesh Kumar] Member (Judicial)
[Dr. Ashok Kumar Mishra] Member (Technical) Raushan/BM
Restoration Application No. 11 of 2022 in Competition App. (AT) No. 12 of 2022 6
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