Hari Prakash Aggarwal vs Mr. Nilesh Sharma [Resolutional ...

(Hybrid Mode) 2.12.2024 - This Appeal is directed against the Order dated 11th

January, 2024 by which restoration application No.2 of 2024, filed

by the Appellant, seeking restoration of RA 200/2023 has been

dismissed. The Applicant/Appellant filed I.A. 1724 of 2021 against

the Order by which her claim was rejected by the RP. The Appellant

is a homebuyer. The said application remained on board for about

two years and ultimately dismissed on 6th October, 2023 for non-

prosecution. On 6th October, 2023, the following Order was passed:-

"IA - 1724/ 2021 None appears despite repeated calls. IA dismissed for non-prosecution."

2 2. The Appellant then filed an application bearing No. RA -

200/2023. According to the Appellant, the said application was

shown in the list of ordinary cases and not in the supplementary

cases, therefore, it escaped her notice and the said application was

also dismissed for non-prosecution on 14th December, 2023. On 14th

December, 2023, the following Order was passed:-

"New RA-200/2023:-

None appears for the Appellant despite the repeated calls. Restoration Application No.200/2023 is dismissed for non-prosecution."

3. In order to get the RA 200/2023 restored, the

Applicant/Appellant filed another application i.e. Restoration

Application No.2 of 2024. The said Application was heard by the

Tribunal and dismissed on 11th January, 2024 with the following

Order:-

"New Rest-2/2024:-

This application has been filed seeking to restore RA-200/2023, which was dismissed for non- prosecution on 14.12.2023.

We have heard the submissions made by the Learned Counsel appearing for the Applicant and

Comp. App. (AT) (Ins) No.427 of 2024 3

perused the application. We do not see any reason to allow the prayer.

IA dismissed."

4. Counsel for the Appellant has submitted that the CIRP was

initiated on 6th September, 2019. The Appellant has filed Form 'A' for

the claim of Rs.65 lakhs. The said claim was admitted by the IRP. He

again received an e-mail from the RP in pursuance of which the

Appellant submitted its claim which was also admitted by the IRP

but in a subsequent list dated 29th June, 2020, the amount claimed

by the Appellant was shown as nil.

5. The Appellant filed I.A. 1724 of 2021 Which came to be

dismissed on 6th October, 2023 because Counsel for the Appellant,

who was pursuing that application had left for US without informing

the Appellant. Otherwise, Appellant would have engaged another

Counsel to pursue the said application. As soon as the Appellant

came to know on the website of the Tribunal on 15th November, 2023

that the application has been dismissed for non-prosecution, on 6th

October, 2023, the Appellant filed the Restoration Application

bearing R.A. No.200 of 2023 which was though listed by the Tribunal

in the cause list but in the ordinary cases though it is generally listed

Comp. App. (AT) (Ins) No.427 of 2024 4

in the supplementary list as a result of which it did not come to the

notice of the Appellant and, therefore, there was no representation

on behalf of the Appellant on 14th December, 2023. The said

application was also rejected for non-prosecution. The Appellant then

filed the present Application No.2 of 2024 and brought all these facts

to the Tribunal but the Tribunal, without giving any reason,

dismissed the application. Counsel for the Appellant has submitted

that strangely RA 2 of 2024 was shown in the Supplementary List,

therefore, she had a cause to submit before the Tribunal that since

RA 200 of 2024 was listed in the ordinary list, therefore, it did not

come to the notice of the Counsel and also there was no deliberate

attempt on the part of the Counsel not to appear in the case. The

Appellant has also relied upon a decision of the Hon'ble Supreme

Court in "Rafique and Another. Vs. Munshi Lal & Another"

(AIR 1981 SC 1400) in which Hon'ble Supreme Court has held as

following:-

"The disturbing feature of the case is that under our

present adversary legal system where the parties

generally appear through their advocates, the

obligation of the parties is to select his advocate, brief

him, pay the fees demanded by him and then trust

Comp. App. (AT) (Ins) No.427 of 2024 5

the learned advocate to do the rest of the things. The

party may be a villager or may belong to a rural area

and may have no knowledge of the court's procedure.

After engaging a lawyer, the party may remain

supremely confident that the lawyer will look after his

interest."

6. Basically, the Hon'ble Supreme Court has held that fault of the

party who having done everything in his power as expected of him in

engaging a Counsel should not suffer because of the fault of his

advocate.

7. On the other hand, Ms. Varsha Banerjee, Advocate appearing

for the Respondent has submitted that the non-appearance on 14th

December, 2023 is on the part of the Appellant because the case was

shown in the cause list, may be in the list of ordinary cases. She has

further submitted that at the time of passing of the impugned Order

on 11th January, 2024, the Tribunal has observed that it has heard

the Counsel, perused the application and recorded that it has not

found any reason to allow the application, therefore, it does not lie in

the mouth of the Counsel for the Appellant that her case has not been

considered by the learned Tribunal.

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8. Heard both the Counsel for the parties and perused the record.

The only issue involved in this case is that the Tribunal while passing

the Order dated 11th January, 2024 has passed a speaking Order or

not. In the present legal system where the party who has engaged his

counsel remain supremely confident that his Counsel would appear

on his behalf and submit his case, should not be penalized if the

Counsel engaged by the Appellant, left for USA without informing the

Appellant. We have no doubt in our mind that the parties who have

been pursuing this application continuously for two years, i.e. from

the date of filing till ultimately dismissed on 6th October, 2023 would

not appear deliberately. The Review Application i.e. RA 200 of 2023

which was dismissed by the learned Tribunal is also on the issue that

the Counsel for the Appellant did not appear but the Appellant has

given the reason for the non-appearance and said reason has not

been appreciated by the learned Tribunal while dismissing

Restoration Application 2 of 2024.

9. With the aforesaid facts and circumstances and that the

Appellant has invested his hard earned money of Rs.65 lakhs and

that the claim of the Appellant was once admitted by the IRP and the

RP, RP in the list dated 29th June, 2020, the amount claimed by the

Appellant was shown as nil, we are of the considered opinion that

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this Appeal deserves to be allowed because the impugned Order is

totally non-speaking. Therefore, the Order dated 11th January, 2024

is hereby set aside and the matter is remanded back to the learned

Tribunal to decide the said application in accordance with law by

passing a speaking order. Parties are directed to appear before the

learned Tribunal on 10th January, 2025.

10. We make it clear that we have not made any observation on the

merit of the case.

The Appeal stands disposed of. Pending application, if any, also

stand disposed of.

[Justice Rakesh Kumar Jain] Member (Judicial)

[Naresh Salecha] Member (Technical) rs/rr

Comp. App. (AT) (Ins) No.427 of 2024