Modern Planners Private Limited & Ors vs Ashutosh Gupta & Anr

IN THE MATTER OF: Modern Planners Pvt. Ltd. & Ors. ...Appellants Versus Ashutosh Gupta & Anr. ...Respondents

Present For Appellants : Mr. Anukul Raj, Mr. Shashwat Anand, Mr. Niladri Chatterjee, Mr. Shashwat Parihar, Mr. Dhruva Vig, Mr. Ritambhara Singh, Ms. Shruti Goyal, Mr. Deepanshu Garg, Mr. Akash Singh, Mr. Tushar Bhalla, Mr. Sarthak Dora, Advocates For Respondents :

ORDER

04.10.2023: When the appeal was taken up Mr. Anukul Raj, Ld. Counsel

assisted by Mr. Shashwat Anand, Ld. Counsel for the Appellant sought

permission to argue on the merit of the appeal. However, on being asked that

in the present appeal an application for condonation of delay in re-filing has

been filed, Ld. Counsel for the Appellant argued on interlocutory application

which was filed for condonation of delay in re-filing. Fact remains that earlier

since there was delay of 39 days i.e. for more than 30 days, the Ld. Registrar of

this Tribunal, by its order dated 15.09.2023, has placed this appeal before the

Bench for considering the condonation of delay application. Thereafter, on

18.09.2023, when appeal was taken up it was submitted by one Mr. Vivek

Kumar, Ld. Counsel that only yesterday he had received brief from his client. -2-

He further informed that his client had taken over the brief from the previous

Counsel and as such he sought permission to file fresh Vakalatnama. He was

permitted to file fresh Vakalatnama within one week and thereafter it was

directed to list the appeal for today i.e. 04.10.2023.

Today, the Ld. Counsel, who had earlier filed appeal, appeared and

submitted that earlier though client had taken back the brief, but now his

client has again authorized him to appear in this appeal and thereafter Mr.

Anukul Raj, Ld. Counsel assisted by Mr. Shashwat Anand, Ld. Counsel who is

Advocate on record, started submission and we heard him firstly on

Interlocutory application which was filed for condonation of delay in re-filing.

Since some reason were assigned, we have been persuaded to allow the

application for condonation of delay application in re-filing. Thereafter, he tried

to place the case on merit. Again it was pointed out by this court that the

appeal has been filed along with an another interlocutory application i.e. I.A.

No. 4297 of 2023 which was filed for exemption from filing certified copy of the

order. The order impugned was passed on 13.06.2023 and thereafter the

appeal was preferred on 26.07.2023. In normal course it was expected that the

appellant would have obtained the certified copy of the order and filed the same

without any further delay. An application for exemption in filing certified copy

is to be filed where there is no time in filing appeal. Once an appeal is filed, it is

expected that immediately thereafter certified copy will be filed.

Company Appeal (AT) No. 179 of 2023 & I.A. No. 4256 of 2023 -3-

However, in the present case till date certified copy of the impugned order has

not been brought on record.

However, in the present appeal despite the fact that impugned order was

passed on 13.06.2023 and thereafter firstly on15.09.2023 the matter was

placed before the Ld. Registrar for condoning delay in re-filing and again the

appeal was listed before the Bench and on 18.09.2023. The conduct of the

Appellant shows that he had earlier taken brief from his Counsel and requested

another Counsel to appear. This was the reason that one Mr. Vivek Kumar, Ld.

Counsel had appeared on last date and requested for short time for filing fresh

Vakalatnama and again the same appellant has authorized the same Counsel

for appearing that too without filing of the certified copy of the impugned order.

Though at this stage in absence of certified copy of the impugned order we are

not required to examine the merit of the case, however the fact remains that

appeal has been preferred under Section 421 of the Companies Act, 2013

against an order dated 13.06.2023 passed by National Company Law Tribunal,

New Delhi (herein after referred to as NCLT) in CA 328/ND/2022 in CP-

47/241-242/ND/2021 whereby an application filed by the Appellant on the

point of maintainability was rejected. The order further reflects that company

petition was ripe up for hearing and in the case reply was also filed however

belatedly maintainability point was raised by filing an application which has

been rejected by the order impugned.

Company Appeal (AT) No. 179 of 2023 & I.A. No. 4256 of 2023 -4-

We are not recording any opinion on the merit of the case, but we are not

inclined to entertain the present appeal due to the latches on the part of the

appellant, particularly in view of the fact that even after expiry of several

months the appellant has not brought on record the certified copy of the order

and also the fact that on instruction of the appellant on last date, i.e. on

18.09.2023 an advocate got the appeal adjourned for filing fresh Vakalatnama,

whereas today it was intimated that the Counsel who had filed Vakalatnama

along with Memo of Appeal has been again asked to appear. Obviously conduct

of the appellant appears to be not fair.

In view of afore referred reason, the appeal stands dismissed.

[Justice Rakesh Kumar] Member (Judicial)

[Dr. Alok Srivastava] Member (Technical)

sr/md

Company Appeal (AT) No. 179 of 2023 & I.A. No. 4256 of 2023