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National Urban Co-Operative Bank vs Mr. Anup Kumar & Ors

National Company Law Appellate Tribunal4 November 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

NATIONAL COMPANY LAW APPELLATE TRIBUNALPRINCIPAL BENCH, NEW DELHIRestoration Application No. 4 of 2022InCompany Appeal (AT) (Ins) No. 531 of 2021

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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