M/S Aiko Builders Pvt Ltd And Ors & Ors vs M/S Aloukik City Llp And Ors & Ors

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NATIONAL COMPANY LAW APPELLATE TRIBUNAL PRINCIPAL BENCH NEW DELHI COMPANY APPEAL (AT) NO.399/2024 (Arising out of judgement and order dated 22.10.2024 passed by the National Company Law Tribunal, Mumbai III in CA No.545 of 2022 in CP No.1693/2019) In the matter of: 1. Aiko Builders Pvt Ltd. Adhrit, Sales Office, SV Road, Opp Malad MTNL, Malad West, Mumbai 400064

2. Niraj Jayuantilal Vora Through Power of Attorney holder Amiot Vasani, C 24, Kalpataru Towers, Akurli Road, Kandivli East, Mumbai 400101

3. Ketan Sangoi A/9 Rakhi Building, MG Road, Opp Turakhia Park Kandivali (West), Mumbai 400067 Appellants

Vs

1. Aloukik City LLP Shop No.F1, Mahalakshi Center, B Wing, First Floor, Opp Bal Bharati School, S V Road, Kandivali (W), Mumbai 400067

2. Naresh Kumar Hansraj Shah, Basanti Bhawan, Ramgalli, S V Road, Kandivali (West), Mumbai 400067 Respondents 2

For Appellant:Mr. Gaurav Mitra, Lavanya Pathak, Mr Ishwar Ahuja, Ms Nishtha Kumar, Mr. Geo Kennedy K, Ms Veera Mathai, Mr Karan Khurana, Mr. S. Sethi, Ms Bhairavi S.N., Mr. Gaurav Nair, Advocates. For Respondent:Mr Abhijeet Sinha, Sr Advocate, with Mr. Vijay Kumar Tiwari, Advocate for R1. Mr. Devashish Chauhan, Ms Jasleen Singh, Mr Ansh Gulati, Advocates for R2. JUDGEMENT

JUSTICE YOGESH KHANNA, MEMBER (JUDICIAL) This appeal is filed by the appellant against an impugned order dated

22.10.2024, passed in CA No.545/2022 in Company Petition No.1693/2019

which was dismissed in default on 24.10.2019, directing its restoration. It is the

submission of the appellant that the Company Petition No.1693/2019 filed

before the Ld. NCLT by the Respondent herein alleging oppression and

mismanagement was dismissed in default on 24.10.2019 for non-prosecution.

2.The first restoration application was filed bearing MA No.3954/2019 but then

the applicant did not appear and hence Ld. NCLT had dismissed the application

for non-appearance on 19.12.2019. Thereafter second restoration application

viz CA No.874/2020 was filed seeking the restoration of 1st restoration

application as well as Company Petition, but it was also dismissed for non-

prosecution on 02.11.2021. Hence, the third restoration application bearing CA

No.545/2022 seeking setting aside of the dismissal of the second restoration

application and restoration of the Company Petition was allowed.

3. The impugned order was passed on 22.10.2024 allowing the restoration of

the main company petition, subject to payment of cost of Rs.1.5 lakh to Bharat

Kosh and Rs.40000/- to the appellant.

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4. This order dated 22.10.2024 has been challenged before us stating inter

alia if the Ld. NCLT was to allow the third restoration application it ought to

have set aside the order dated 02.11.2021 whereby the second restoration

application was dismissed. It was argued in a third restoration application, the

Ld. NCLT ought not to have jumped the queue to allow restoration of the

Company Petition when the 1st and 2nd application for restoration in respect of

orders dated 19.12.2019 and 02.11.2021 were still pending, more specifically

when the impugned order itself take notes of the callous attitude of the petitioner

as well as of his counsel but then simply went to note the Respondent was 50%

shareholder but due to the acts of the appellant herein was reduced to the

minuscule shareholding of 0.51% and if the company petition is not restored,

the respondent shall suffer miscarriage of justice.

5. If one peruses the impugned order it takes note of an affidavit dated

09.02.2023 filed on record by the Respondent herein alongwith his medical

reports and of his daughter wherein various medical certificates were issued by

Shree Krishna Day Care Center showing respondent was suffering from

hypertension, vomitting etc on various dates and was under treatment of Dr

Shyam Jha and in the year 2018 and his daughter was also admitted to Joslok

Hospital but then the Ld. NCLT held it was not satisfied as to the genuineness

of reasons for non-prosecuting the present matter. Thus where Ld. NCLT was

itself not satisfied with the reasons given than as a matter of right all the three

restoration applications ought not to have been allowed on merits and if at all 4

an application was to be restored; it could have been only the second restoration

application, dismissed on 02.11.2024.

6. The learned senior counsel for the Respondent submits the appellants

have been duly compensated and hence they need not have any grievance and

further that the substantive justice need to be done and that in all the three

restorations applications, the restoration of the company petition was already

prayed for and hence there was no illegality in restoring the company petition.

7. We disagree to the submission made by the respondent as the question is

where the court itself is finding no cogent reasons for non-appearance, will the

cost suffice the purpose. To our mind the answer would be 'No'.

8. In the circumstances we note if at all the Court was inclined to give some

relief to respondent it ought to have allowed the 3rd restoration application to

restore the 2nd application which was dismissed on 02.11.2021 and then could

have examined the reasoning given for dismissal for the 1st and 2nd restoration

application and the company petition or at least ought to have taken all these

issues separately in the same order as issues of limitation were also raised.

9. Thus where the Ld. NCLT itself being not satisfied with the reasons given

for non-appearance, ought not to have allowed the restoration of the company

petition, dismissed in default 5 years before, that is, in the year 2024.

10. Thus we modify the order of the Ld. NCLT to say only the restoration

application is allowed and that the reasons for allowing the earlier restoration

applications, alongwith the restoration of company petition be dealt with 5

separately. We, however, set aside the cost as imposed, though Ld. NCLT will be

at liberty to levy cost in case the company petition is restored.

11. With these observations, we remand the matter to the Ld. NCLT for fresh

consideration on first and second restoration applications.

12. Appeal is partly allowed.

13. Pending IAs No.8544 and 8545 of 2024 are disposed of.

(Justice Yogesh Khanna) Member (Judicial)

(Mr Ajai Das Mehrotra) Member (Technical) Dated:19-03-2026 Bm