Nabard Consultancy Services ... vs Dharmendra Kumar
- CitationCompany Appeal (AT) (Insolvency) No.2196 of 2024
Ratio decidendi
The rule this decision rests on
Where an adjudicating authority dismisses an appeal both for non-prosecution and "on merits" but its order contains no consideration of the merits, the dismissal on merits is not a sustainable disposal; a disposal on merits requires the adjudicating authority to consider the merits of the case, and where the order does not do so, the appellant's remedy is to apply to recall the order on showing sufficient cause for non-appearance is not foreclosed but is the proper course only where the dismissal was for non-prosecution alone, whereas where the appeal is also disposed of on merits no such recall remedy is available to the appellant. Where the dismissal rests on non-prosecution coupled with an unreasoned merits finding, the appellate tribunal may set aside the order and revive the appeal for fresh consideration on merits by the adjudicating authority without itself expressing any opinion on the merits, the ends of justice being served by such revival on the facts of the case.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
IN THE MATTER OF: Nabard Consultancy Services Pvt. Ltd ...Appellant
Versus
Dharmendra Kumar, (Official Liquidator for IAP Company Pvt. Ltd.) ...Respondent
Present: For Appellant : Mr. Rishi Kapoor, Mr. Azad Bansala, Dr. Lokesh Sukhwani, Mr. Yash Gupta, Advocates. For Respondent : Mr. Rohit Anil Rathi, Mr. Yashes R. K., Advocates for Liquidator.
ORDER
(Hybrid Mode)
10.01.2025: Heard learned counsel for the Appellant as well as learned
counsel for the Liquidator. This appeal has been filed against the order dated
04.09.2024 passed by the NCLT, New Delhi (Court-III) in Appeal No.08/2023,
which was filed by the Appellant against the decision of the Liquidator
rejecting claim of the Applicant. When the appeal came for hearing following
order was passed:
"Appeal-8/2023:-
This appeal has been filed against the decision of the Liquidator rejecting the claim of the Applicant which was communicated by email dated 26.12.2022. The present appeal has been filed on 27.01.2023. The Liquidator rejected the claim of the Applicant on the ground of delay.
Cont'd.../ 2
No one has appeared on behalf of the Applicant. We do not see any reason to interfere with the order of the Liquidator. The appeal is accordingly dismissed for non-prosecution as well as on merits."
2. Learned counsel for the Appellant submits that Appellant has earlier
appeared on four occasions but on the said date cannot appear, however, one
proxy counsel appeared. Proxy counsel informed that counsel is indisposed,
however, the Adjudicating Authority proceeded and dismissed the appeal for
non-prosecution.
3. While dismissing the appeal for non-prosecution, the Adjudicating
Authority has also added words "as well as on merits". The order does not
indicate any consideration of merits in the order. Disposal of appeal on merits
require consideration of the Adjudicating Authority on merits of the case. In
event the appeal was dismissed only for non-prosecution, the Appellant has
remedy to file application to recall the order after showing sufficient cause for
non-appearance. However, appeal also having disposed on merits, any
remedy is not available to the appellant.
4. In facts of the present case, ends of justice will be served in reviving
Appeal No.08/2023 for fresh consideration before the Adjudicating Authority.
Order dated 04.09.2024 dismissing Appeal No. 08/2023 is set aside. Appeal
No.08/2023 is revived. The Adjudicating Authority may consider the appeal
afresh. We make it clear that we have not expressed any opinion on the merits
Company Appeal (AT) (Insolvency) No.1296 of 2024 3
of the case. We further record submission of the Appellant that no
adjournment shall be taken by the Appellant. Appeal is disposed of
accordingly.
[Justice Ashok Bhushan] Chairperson
[Barun Mitra] Member (Technical)
[Arun Baroka] Member (Technical) Archana/nn
Company Appeal (AT) (Insolvency) No.1296 of 2024
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