National Urban Co-Operative Bank vs Mr. Anup Kumar & Ors
- CitationRestoration Application No. 4 of 2022
Ratio decidendi
The rule this decision rests on
Where a Company Appeal has been dismissed for non-prosecution, and the non-appearance on the relevant dates was attributable to the court proceedings being conducted in virtual mode and was not intentional, the Tribunal may treat that as sufficient reason for non-appearance and restore the appeal. A respondent's request for time to file a reply is not a ground to defer restoration where the respondent has, despite repeated opportunities, failed to file a reply in the main appeal; the restoration may be allowed notwithstanding the pending reply, with the respondent directed to file any reply within a fixed period.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
IN THE MATTER OF: National Urban Co-operative Bank Ltd. ...Applicant Versus Anup Kumar & Ors. ...Respondents Present: For Appellant : Mr. Ilesh Shukla, Mr. Manav Jain, Mr. Chetanya Singh, Advocates. For Respondents : Ms. Shankari Mishra, Ms. Niharika Tanwar, Advocates for R-1. Mr. Anubhav Gupta, Advocate for R-2. Mr. Govind Bhardwaj, Advocate for R-5 Ms. CS Vartika Mittal, for R-5
ORDER
04.11.2022: Heard Mr. Ilesh Shukla Ld. Counsel for the Applicant. Mr.
Anubhav Gupta Ld. Counsel for the Respondent No. 2 submits that it may be
adjourned for filing Reply. Notice in the Restoration application was received by
him on 12.09.2022. However, Ld. Counsel for the Respondent No. 2 Mr. Gupta
submits that only notice was received and he did not receive the application.
He submits that just now he has received the application and as such he needs
some time to file Reply.
2. The present application has been filed for Restoration of Company Appeal
(AT) (Ins) No. 531 of 2021 which stood dismissed on 20.07.2022 due to non-
prosecution. While dismissing the appeal due to non-prosecution this tribunal
has also noticed that one day earlier also i.e. 19.07.2022 there was none -2-
appearance. Ms. Shankari Mishra, Ld. Counsel appearing for R-1/RP submits
that it is true that in restoration petition Mr. Gupta Ld. Counsel appearing for
R-2 is making prayer for adjournment for filing Reply but in the main appeal,
despite various opportunity being granted to Respondent No. 2, no Reply has
been filed. Record shows that only vakalatnama is filed on behalf of
Respondent No. 2, but no Reply has been filed till date.
3. In the Restoration Petition detailed reason has been assigned for none
appearance. Fact remains that on both the dates i.e. 19.07.2022 & 20.07.2022,
the court proceeding was being conducted in virtual mode. Accordingly, we are
of the opinion that sufficient reason has been assigned in the restoration
application for none appearance which obviously was not intentional.
4. Considering the ground taken in the restoration Petition we feel that it
would not be appropriate to defer restoration only on the ground of filing Reply
by a party who in the main petition despite repeated indulgence has not filed
Reply. Accordingly the restoration Petition is allowed. Let the Appeal be
restored to its original file and thereafter put up on 05.12.2022 under the
caption 'For Admission (After Notice)' as the first case.
Restoration Application No. 4 of 2022 In Company Appeal (AT) (Ins) No. 531 of 2021 -3-
5. If anyone intends to file Reply it must be filed within ten days from today
failing which their Reply may not be entertained by the Registry.
[Justice Rakesh Kumar] Member (Judicial)
[Dr. Ashok Kumar Mishra] Member (Technical) sr/gc
Restoration Application No. 4 of 2022 In Company Appeal (AT) (Ins) No. 531 of 2021
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