Kishorilal Agarwal & Ors vs Alliance Engineers Pvt Ltd

In the matter of: Kishorilal Agarwal & Ors Applicant Vs Alliance Engineers Pvt Ltd & Ors Respondent For Appellant: Mr. Gaurav Mitra, Mr. Soumya Dutta, Mr. Siddhant Upmanyu, Advocates. For Respondent: None. ORDER

15.03.2023: Heard Mr. Gaurav Mitra, learned counsel for the applicant.

It is a peculiar restoration application which has been filed after lapse

of several years. The Company Appeal(AT) No.267/2017 which was filed

under the provisions of Companies Act was dismissed long back on

29.07.2019 due to non-prosecution. Before proceeding it would be

appropriate to reproduce the order dated 29.07.2019 as follows:

"29.07.2019- On 18th August, 2017, in spite of repeated calls, nobody

appeared on behalf of the Appellants.

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2. On 24th August, 2017, learned counsel for the Appellants appeared

and following order was passed:

"24.08.2017 -Ld. Counsel for the appellant is allowed two days'

time to file complete set of the impugned judgement dated 20 th

April, 2017. The Petition for condonation of delay and the appeal

will be considered thereafter."

3. Today inspite of the repeated calls, nobody appears on behalf of the

Appellants, though two years have passed. No petition for condonation

of delay has been placed on record.

4. In the circumstances, the appeal is dismissed for non-prosecution. No

cost."

On perusal of the aforesaid order it is evident that it was not a simple

case of non-appearance on repeated calls but it was also noticed that no

petition for condonation of delay was placed on record. Though the appeal

was dismissed for non-prosecution on 29.07.2019 the present restoration

application has been filed through e-filing on 11.01.2023 and hard copy was

filed on 12.01.2023.

Mr. Mitra, learned counsel submits that the Appellant No.1 was the

main person who was pursuing the appeal and since the earlier counsel had

not taken the matter seriously and due to fault of earlier counsel the appeal

was dismissed due to non-prosecution. The learned counsel submits that

the applicant may not suffer due to lapse on the part of the earlier counsel.

It was further pointed out that the applicant after receiving the order of 3

dismissal due to non-prosecution was hospitalised for a long period till the

month of January, 2020. However, subsequently due to Covid 19 the

applicant was prevented from filing any restoration application. This is the

reasons that the delay has occurred in filing the restoration application. Mr

Mitra, learned counsel by way of referring to the Supreme Court Judgement

reported in 1981(2) SCC 788. Rafiq & Anr Vs Munshi Lal & Ors and also High

Court Judgement in the matter of Lalit Kumar Bhargava (now Deceased) Vs

Devender Kumar Bhargava (IAs 7872/98 and 1494/89 and 931/90 in S.

614/86 submits that due to lapse on the part of the counsel the party may

not be allowed to suffer. It was argued that due to lapse on the part of the

earlier counsel the appeal was dismissed for non-prosecution.

We have examined the material on record. In the present petition

nothing has been stated as to whether the applicant has lodged any complaint

against the earlier counsel. It is easy to make allegation on a counsel but in

such situation it is required that one must show as to what action was taken

against the then counsel. No averment has been made in this regard.

Moreover the appeal stood dismissed in the month of July, 2019. It is stated

that the applicant No.1, who was pursuing the appeal was hospitalised and

he was admitted upto January, 2020. Lock down period due to Covid 19

started from 22.03.2020. However, even thereafter the court started

functioning through virtual mode and from August, 2022 this Court started

the physical hearing. No explanation has been given as to during the physical

hearing how the applicant was prevented to file the restoration application. In

such view of the matter no leniency can be shown to the applicant. 4

We do not find any ground to restore the appeal.

The restoration application is accordingly dismissed.

(Justice Rakesh Kumar) Member (Judicial)

(Dr. Alok Srivastava) Member (Technical) Bm/gc