Brown Bird Enterprises Private Limited vs & Ors

IN THE MATTER OF: Brown Bird Enterprises Pvt. Ltd. ...Appellant Versus Sundaram Finance Ltd. & Ors. ...Respondents Present: For Appellant : Mr. Vivek Sarin, Mr. Dhruv Dev Gupta, Mr. Satish C. Kaushik, Adv.

For Respondents : Mr. Toshif Ahmed & Mr. Hashmat Nabi, for R-4

ORDER

(Hybrid Mode)

[Per : Mohammad Faiz Alam Khan (Oral)]

10.04.2026 Heard Learned Counsel for the Appellant as well as

Learned Counsel for the Respondent No. 4.

2. Compliance affidavit dated 01.12.2025 has been filed by the Appellant

in pursuance of the order dated 04.11.2025 with the contention that the

Appellant was permitted to accept service on the Respondents by

publication in seven newspapers and in compliance of the said directions of

this Appellate Tribunal, the notice was published in newspapers of English

as well as in vernacular languages.

3. It is also stated that the newspaper wherein the notice was published

were having vide circulation in Delhi, Maharashtra, Karnataka, West

Bengal, Tamil Nadu, Gujarat and Uttar Pradesh, where the Respondents are

ordinarily residing or having their head office. Copy of the aforesaid

newspapers is also enclosed with the affidavit.

4. Keeping in view that the affidavit of service has been filed by the

Appellant and from the averments made therein along with the copy of the

aforesaid newspapers, it appears that the substituted service on the

Respondents have sufficiently been done well before 01.12.2025. Thus, we

hold that the service on Respondent is sufficient. However, except

Respondent No. 4, no respondent in represented.

5. Learned Counsel for the Appellant as well as Learned Counsel for the

Respondent No. 4 are ready to argue the matter. Heard Learned Counsel for

the Appellant as well as Learned Counsel for the Respondent No. 4.

6. The instant appeal has been filed by the Appellant against the

impugned order dated 09.06.2025 Restoration application/47/ND/2025 in

IB/258/ND/2024 with the following prayers:-

a) Setting aside Impugned order dated 09.06.2025 in Restoration

Application No. 47 of 2025 in Company Petition (IB) No. 258 of 2024

passed by the National Law Company Tribunal, New Delhi Bench;

and/or

b) Restore the Company Petition (IB) No. 258 of 2024 to its original

position; and/or

c) Pass any other order or orders as this Hon'ble Appellate Tribunal may

deem fit and proper in the facts and circumstances of the present

case.

7. Learned Counsel for the Appellant submits that he has filed an

application under Section 10 of the Insolvency & Bankruptcy Code, 2016 ('Code') before the Learned Adjudicating Authority and the same was

pending for adjudication. However, on 16.05.2025 the Learned Counsel for

the Appellant was before the Hon'ble Supreme Court in connection with

Special Leave Petition (Civil) Diary No. 17900/ 2025, Deputy Director,

Directorate General of GST Intelligence, DZU & Ors. vs. Kings Security

Guard Services Private Limited and for this reason, he could not appear

before the Learned Adjudicating Authority and vide order dated 16.05.2025

the petition of the Appellant was dismissed for non-prosecution.

8. It is further submitted that the Appellant has moved a Restoration

Application before the Learned Adjudicating Authority contending

specifically that on 16.05.2025 the Learned Counsel for the Appellant,

namely, Mr. Dhruv Dev Gupta was before the Hon'ble Supreme Court and

for that reason he could not appear before the Learned Adjudicating

Authority but Learned Adjudicating Authority has dismissed the restoration

application moved by the Appellant by passing an order dated 09.06.2025

without considering the ground put forth by the Appellant in his

application.

9. It is vehemently submitted that the Applicant/ Appellant was

contesting his case before the Learned Adjudicating Authority bonafidely

and it was only on 10.03.2025 that due to ill health of Learned Counsel for

the Appellant he could not appear before the Learned Adjudicating

Authority and before 10.03.2025 Learned Counsel for the Appellant was

regularly appearing before the Learned Adjudicating Authority.

10. It is vehemently submitted that a party should not be penalised for

any act of his counsel and since a reasonable explanation of the absence of

Learned Counsel for the Appellant was placed before the Learned

Adjudicating Authority alongwith the order of the Hon'ble Supreme Court

passed in Special Leave Petition (Civil) Diary No. 17900/ 2025 wherein the

presence of the Learned Counsel for the Appellant is noted, the restoration

application of the Appellant should have been allowed.

11. It is submitted that the Appellant intends to contest the 'lis'

bonafidely and is making a statement that if an opportunity be given to

contest the case, no adjournment shall be taken on his behalf and therefore

the impugned order be set a side and Restoration Application moved by the

Appellant be allowed.

12. Learned Counsel for the Respondent No. 4 however, submits that he

is not having objection so far as the prayer of the Appellant with regard to

the acceptance of his restoration application is concerned.

13. We have heard Learned Counsel for the Party and have perused the

record and find that it was on 10.03.2025 and 16.05.2025, Learned Counsel

for the Appellant did not remain present before the Learned Adjudicating

Authority and for this reason the petition filed by the Appellant was

dismissed by the Learned Adjudicating Authority by passing the impugned

order dated 09.06.2025.

14. We also notice that the reason for non presence before the Learned

Adjudicating Authority has been taken by the Appellant in terms that their counsel, namely, Mr. Dhruv Dev Gupta, Advocate on that day was present

before the Hon'ble Supreme Court in Special Leave Petition (Civil) Diary No.

17900/ 2025 which according to Learned Counsel for the Appellant was

listed before the Court No. 3 as item No. 23.

15. Learned Counsel for the Appellant has also drawn our attention

towards the copy of the order of the Hon'ble Supreme Court of date

16.05.2025 passed in Special Leave Petition (Civil) Diary No. 17900/ 2025

wherein the name of Mr. Dhruv Dev Gupta is reflected as Learned Counsel

for Respondents.

16. Even though the duty was of the Learned Counsel for the Applicant

appearing before the Learned Adjudicating Authority to move an appropriate

application for the adjournment of the petition on account of his presence

before the Hon'ble Supreme Court, but it is reflected that it was only on two

occasions when Learned Counsel for the Appellant was not present before

the Learned Adjudicating Authority once on 10.03.2025, due to ill health of

Learned Counsel for the Appellant and secondly on 15.06.2025 and the

reason of his non appearance before the Learned Adjudicating Authority on

the date when the impugned order has been passed i.e., 09.06.2025

appears to be sufficient and genuine as he was present before the Hon'ble

Supreme Court in the aforestated case.

17. In view of above, we are of the considered opinion that sufficient

explanation has been given by the Appellant on non presence of their

Advocate before the Adjudicating Authority on 09.06.2025 an opportunity may be provided to the Appellant to contest his case before the Learned

Adjudicating Authority diligently.

18. Thus, keeping in view of the facts and circumstances of the case and

for the reasons mentioned herein before, we are of the considered view that

the impugned order dated 09.06.2025 is liable to be set aside and is set

aside as such. The appeal is thus allowed. The Restoration

application/47/ND/2025 in IB/258/ND/2024 dismissed vide order dated

09.06.2025 is revived on the board of the Learned Adjudicating Authority

with the direction that the same will now be disposed of afresh after

providing an opportunity of being heard to the parties strictly in accordance

with law and keeping in view the defence which has been taken by the

Appellant of his non presence before the Learned Adjudicating Authority on

16.05.2025.

19. We clarified that we have not expressed any opinion in so far as the

merits of the case is concerned. Parties shall appear before the Learned

Adjudicating Authority on 22.04.2026. There is no order to costs. I.A., if

any, is also disposed of.

[Justice Mohammad Faiz Alam Khan] Member (Judicial)

[Mr. Naresh Salecha] Member (Technical)

Sim/mr