M/S Global Service vs Arabtec Constructions (India) Private ...
- CitationCompany Appeal (AT) (Insolvency) No.1567 of 2023
Ratio decidendi
The rule this decision rests on
The Adjudicating Authority was entitled to reject a restoration application where the applicant, having been directed by a specific order to file an affidavit of service within one week, failed to comply with that direction, and the applicant's travel on the date of hearing did not excuse non-compliance with that direction. Proceedings under the Insolvency and Bankruptcy Code must be completed in a time-bound manner, and a party prosecuting an application under the Code is not entitled to indulgence from the Adjudicating Authority where its conduct of the proceeding has been non-compliant with the Authority's directions.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
Global Service ...Appellant
Versus
Arabtec Constructions (India) Pvt. Ltd. ...Respondent
Present: For Appellant: Mr. Sanket Khandelwal and Mr. Satya Prakash, Advocates. For Respondent:
ORDER
14.12.2023: This Appeal has been filed against the order dated 16.08.2023 by which the application for restoration being RA No.115/2023 has been rejected. Appellant filed an application under Section 9 which was dismissed for non-prosecution on 02.01.2023 and after expiry of six and a half months, the Appellant filed application for restoration, on which the Court passed following order on 19.07.2023:
"ORDER
IA-3673/2023: Issue notice to the Respondent returnable on 16.08.2023. The Applicant undertakes to serve notice upon the Respondent through all modes viz, registered post, speed post and E-mail. Affidavit of service be filed within one week. The reply may be filed by the Respondent within one week from the date of receipt of the notice. Rejoinder, if any, may be filed before the next date of hearing. List the matter on 16.08.2023.
Cont'd..../ -2-
RA-115/2023: List along with IA-3673/2023. The RA would be considered after the order in IA-3673/2023 is passed. List on 16.08.2023."
2. Case was taken on 16.08.2023. The Adjudicating Authority observed that affidavit of service was not filed and proceeded to dismiss the application on said ground. Learned counsel for the Appellant submits that Appellant was traveling on the date when order was passed, hence, affidavit could not be filed. When the Court has directed on 19.07.2023 to file affidavit of service within one week, Appellant was to comply the order. We are of the view that the Adjudicating Authority has rightly after noticing the sequence of events and facts of the case rejected the restoration application.
3. We are of the view that under I&B Code process has to be completed in a time bound manner and the manner in which the Appellant was prosecuting the application did not require any indulgence of the Adjudicating Authority.
4. We are of the view that no error has been committed by the Adjudicating Authority in rejecting the application for restoration. There is no merit in the Appeal. Appeal is dismissed.
5. We make it clear that it shall be open for the Appellant to take such other legal proceeding for its dues as permissible in law.
[Justice Ashok Bhushan] Chairperson
[Arun Baroka] Member (Technical) Archana/nn
Company Appeal (AT) (Insolvency) No.1567 of 2023
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