M/S Timblo Drydocks Private Limited vs Express Machines & Scaffolding Private ...

IN THE MATTER OF: Timblo Drydocks Pvt. Ltd ...Appellant

Versus

Express Machines & Scaffolding Pvt. Ltd. ...Respondent

Present: For Appellant : Mr. Abhishek Bharti, Ms. Divya Bahl and Ms. Peppino Bahl, Advocates

For Respondent : None

ORDER

(Hybrid Mode)

09.02.2024 Heard Learned Counsel for the Appellant. This Appeal has

been filed against the order passed by the Adjudicating Authority dated

13.09.2023, by which Adjudicating Authority has allowed I.A. No.745 of 2022

to restore the Company Petition. The Operational Creditor has filed the

Company Petition which was dismissed for non-prosecution by order dated

24.03.2021 and I.A. No.981 of 2021 was filed for recall of the said order which

I.A. also came to be dismissed on 01.12.2021. The Operation Creditor on

31.12.2021 filed I.A. No.745 of 2022 for recall of the order passed on

01.12.2021, in which following prayer prayed with:

"a) The captioned petition be restored and the order dismissing the captioned petition be set aside; and

b) such further and other reliefs as this Hon'ble Tribunal may deem fit and proper."

The Adjudicating Authority by the impugned order has allowed the

application and has disposed of the application and restored the captioned

Company Petition.

Learned Counsel for the Appellant challenging the order contend that

in I.A. No.745 of 2022 only prayer was to restore the order dismissing the

captioned company petition, hence that the company petition ought not to

have been restored. He submits that at best only I.A. No. 981 of 2021 ought

to have been restored. He submits that the principal of res-judicata will apply

since earlier application was dismissed for non-prosecution. He submits that

the subsequent application was not within 30 days.

We have considered submission of the Appellant and perused the

record.

The Company Petition was dismissed for non-prosecution on

24.03.2021 for restoration of which company petition I.A. No.981 of 2021 was

filed, which also got dismissed for non-prosecution on 01.12.2021. The next

application I.A. No. 745 of 2022 was filed on 31.12.2021 within 30 days,

hence, the application cannot be said to be barred by time.

In so far as the submission of the Appellant that Adjudicating Authority

ought not to have restored the company petition and at best could have

restored the company petition I.A. No. 981 of 2021 is concerned, it is clear

that the company petition was dismissed for non-prosecution earlier also on

24.03.2021 and the prayer in I.A. No. 981 of 2021 was to restore the company

petition, which got dismissed for default.

Company Appeal (AT) (Insolvency) No. 174 of 2024 2 of 3 The Adjudicating Authority while allowing this I.A. No.745 of 2022 has

allowed the company petition to be restored in which we do not find any error.

There is no question of applicability of principal of res-judicata as contended

by counsel for the Appellant since the applications were dismissed only for

non-prosecution.

In any view of the matter present is not a case for exercise of Appellate

Jurisdiction by this Tribunal in the discretion exercised by Adjudicating

Authority in restoring the company petition. We do not find any merit. Appeal

is dismissed.

We however, make it clear that we are not expressing any opinion on

merits of the case and Adjudicating Authority shall decide the application in

accordance with law.

[Justice Ashok Bhushan] Chairperson

[Mr. Barun Mitra] Member (Technical)

[Mr. Arun Baroka] Member (Technical) pks/nn

Company Appeal (AT) (Insolvency) No. 174 of 2024 3 of 3