Atlas Shipping Services Pvt Ltd vs Overseas Infrastructure Alliance ...

IN THE MATTER OF: Atlas Shipping Services Pvt Ltd ...Appellant Versus Overseas Infrastructure Alliance (India) Pvt. Ltd. ...Respondent Present: For Appellant : Mr. Gulshan Kr. Sachdeva and Ms. Shalini Singh, Advocates.

For Respondent : Mr. P.G. Sabnis, Advocate.

ORDER

(Hybrid Mode)

18.09.2026: The Appellant is a Petitioner in the proceedings of

Company Petition (IB) No. 273(MB)/2023, which was initiated by the

Appellant by invoking the provisions contained under Section 9 of the IBC.

The proceedings under Section 9 of the Code, as preferred by the Appellant

on 15.02.2023, have been rejected by the NCLT, Mumbai, for want of

prosecution. It is this order, which has been put to challenge before this

Tribunal.

2. We called upon the Appellant that when the statute contemplates a

specific remedy against the dismissal in default, it would under law be to

seek a recall of the order by invoking the provisions contained under Rule

48(2) of the NCLT Rules, the appropriate recourse that would have been

available to the Appellant would have been to file an appropriate application

seeking recall of the order, rather than directly preferring an Appeal under

Section 61 of the Code.

3. The learned counsel for the Appellant, in response to the query raised

by the Tribunal, submitted that recourse to Rule 48(2) may not be the

appropriate recourse available to the Appellant for seeking recall of the

Order dated 06.01.2026, dismissing CP (IB) No. 273/MB/2023. The logic

that has been argued by the learned counsel for the Appellant is in relation

to the previous orders that, have been passed by the learned Tribunal

during the course of the proceedings of the Company Petition, like the one

which he has referred to, being the Order dated 06.01.2026. If we scrutinize

the observations made in the Order, which has been relied upon by the

learned counsel for the Appellant, the contention is that, owing to the

observations made therein in the Order dated 06.01.2026 that was passed

earlier, recourse to Rule 48 may not have been an appropriate recourse

available, because the Tribunal might be sitting with a prejudiced mind and

the application under Rule 48 may not be effectively decided, and was

bound to be rejected.

4. The apprehension expressed by the learned counsel for the Appellant

is absolutely unfounded. Merely during the course of judicial proceedings, if

certain observations are made by the Tribunal on a judicial side, or even if it

is recorded in any of the Orders passed by it, that should not be construed,

as if it would lead the Tribunal to act in a biased manner in any subsequent

proceedings, which may be final or interlocutory in nature. Even if there is

an apprehensive bias, as per the stand taken by the Appellant during the

course of his argument, that itself will not result in an evasion of the

statutory recourse available to the Appellant as against the dismissal of the

Company Petition for want of prosecution on 06.01.2026. Rather, the

2 of 4 Appellant ought to have filed an application for recall invoking Rule 48(2) of

the NCLT Rules and should have sought recall of the Order dated

06.01.2026 dismissing the Company Petition for want of prosecution.

5. At the stage when he presses upon the restoration application, he is

expected to have pressed all his grounds which he intends to articulate and

press in the instant Company Appeal. In order to respond to the

observations made by us as to how the Company Appeal as against the

simpliciter Order of dismissal of the Company Petition for want of

prosecution would be maintainable. On this query, no plausible answer has

been forthcoming

6. Hence, on this limited and exclusive ground, since the impugned

Order happens to be a dismissal in default for want of prosecution, as the

learned counsel for the Appellant had not appeared, we are of a considered

view that the actual statutory remedy available to the Appellant would have

been to file an application for recall invoking Rule 48(2), seeking recall of the

Order dated 06.01.2026, by raising all his contentions which he intends to

substantiate for recalling the Order dated 06.01.2026. It that is done in two

weeks from the date of uploading of this order, the recall would be decided

on its merits.

7. The Appeal in itself under Section 61, as against the nature of the

impugned Order, would not be maintainable. Hence, the Appeal is dismissed

with a liberty left open for the Appellant to file an appropriate application

under Rule 48(2) before the learned Tribunal within a period of two weeks

from the date of uploading of the Order passed by us today. If the same has

3 of 4 been preferred within the said period, the restoration would be considered

and decided on its own merits, rather than an aspect of limitation.

8. Subject to the aforesaid exception, the Company Appeal lacks merit

and the same is accordingly dismissed, holding it to be not maintainable

[Justice Sharad Kumar Sharma] Member (Judicial)

[Arun Baroka] Member (Technical)

[Indevar Pandey] Member (Technical) rashmi/rr

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