Nitu Mittal vs Rajesh Bansal & Ors

IN THE MATTER OF: Nitu Mittal ...Appellant

Versus

Rajesh Bansal & Anr. ...Respondents Present: For Appellant : Mr. Rachit Mittal, Mr. Yashraj Singh, Mr. Parish Mishra, Mr. Abhishek Sinha & Mr. Arnav Singh Deo, Adv.

For Respondents : Mr. Dilip Kumar Niranjan & Mr. Karmveer, for R-1.

ORDER

(Hybrid Mode)

[Per : Mohammad Faiz Alam Khan (Oral)]

03.08.2026 We have been informed that the hard copy of affidavit of

service has been filed by Appellant, the same is taken on record.

2. We also notice that Mr. Dilip Kumar Niranjan is present before us on

behalf of Respondent No. 1.

3. It is informed by Learned Counsel for the Appellant which has not

been objected by Learned Counsel for the Respondent No. 1 that

Respondent No. 2 is a Performa Party and no relief has been claimed against

the same. We place on record the statement given by Counsel for the

Parties.

4. Heard Learned Counsel for the Appellant and Learned Counsel for the

Respondent. Perused the record.

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5. The instant appeal has been filed by the Appellant who was

Respondent No. 2 before the National Company Law Tribunal New Delhi

Bench (Court - II) ('Adjudicating Authority') passed in IA 290/ND/2024 in

CP-50/241-242/ND/2022, challenging the order dated 05.05.2026,

whereby the application moved by the Appellant/ Respondent No. 2 for

recall of order dated 08.10.2024 was dismissed.

6. Learned Counsel for the Appellant while drawing our attention

towards the order dated 08.10.2024 submits that this order has been

passed when the Appellant was not represented before the Learned

Adjudicating Authority.

7. It is further submitted that by order dated 08.10.2024, the

proceedings of the above mentioned petition was set as ex-parte against the

Respondent.

8. It is further submitted that to recall this order the IA 290/ND/2024

was moved by the Appellant before the Learned Adjudicating Authority, in

which it was specifically contended that the information pertaining to the

proceedings of the Learned Adjudicating Authority were not furnished/

informed by Counsel for the Appellant / Respondent No. 2 and it was only

before 08.10.2024 while scrolling the web portal of the NCLT, the Appellant/

Respondent No. 2 got knowledge of the fact that her Counsel is not

appearing before the Learned Adjudicating Authority and also not informing

abut the status of the proceedings before the Adjudicating Authority.

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9. It is thereafter the application for recall was filed immediately on

05.12.2024, however, the same has been dismissed by passing the

Impugned Order.

10. It is vehemently submitted that the parties should not be penalised for

the non-performance of their Counsels and therefore, a sympathetic view

should have been adopted by the Learned Adjudicating Authority.

11. Per-contra, Learned Counsel for the Respondent No. 1 submits that at

first, the notice by the Learned Adjudicating Authority was issued on

21.03.2023 and 09.06.2023, the Appellant/ Respondent No. 2 appeared

before the Learned Tribunal below and four weeks time was granted for the

purpose of filing reply and thereafter till date of passing the Impugned

Order, no reply has been filed, while in between the case was listed before

the Learned Adjudicating Authority for six times.

12. It is further submitted that the whole purpose of moving the

restoration application before the Learned Adjudicating Authority was to

keep the proceedings pending and with the same purpose, the instant

appeal has been filed.

13. Having heard Learned Counsel for the Parties and perused the record

we notice that the facts of this appeal are more or less admitted to the

parties. It appears to be an admitted fact that on 09.06.2023, it was for the

very first time four weeks time was granted to the Appellant/ Respondent

No. 2 for filing of reply and the same could not be filed and by passing of the

Impugned Order dated 08.10.2024, the proceedings were set ex-parte

against the Respondent No. 2/ Appellant.

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15. The reasons which has been given by Learned Counsel for the

Appellant for non compliance of the order passed by the Learned

Adjudicating Authority for non filing of reply before it, is in terms that the

Counsel engaged by the Appellant/ Respondent No. 2 was not providing any

information pertaining to the orders passed by Learned Adjudicating

Authority and it is on this score the reply could not be filed in time and

further that the knowledge of non performance of the Counsel for the

Respondent No. 2/ Appellant was first inferred by the Appellant before

08.10.2024, when he was scrolling through the NCLT Portal.

16. We are of the considered view that the proceedings in Court, wherein

the Parties are represented by their Counsel as must be conducted with due

diligence. The utmost duty of an Advocate apart from conducting the case

diligently is also to have regular communication with their parties and to

inform them about status of their case. We are also of the view that for the

mistake or wrong committed by the Counsel, the Parties should not be

penalised.

17. We are of the further view that so far as possible every lis pending

before the Court of Law should be adjudicated on merits unless a party is

intentionally not contesting the lis diligently and in that case the order for

dismissal in default as ex-parte proceedings may be passed.

18. Thus, keeping in view all the facts of the case, we are of the

considered view that one opportunity may be provided to the Appellant/

Respondent No. 2 to file his reply in order to contest the case diligently, with

specific stipulation that if the said reply is not filed within the period which

Page 4 of 5 may granted by us, no further opportunity would be available to Respondent

No. 2/ Appellant for this purpose.

19. Having regard to the above reasons, the Impugned Order dated

05.05.2026 passed by the Learned Adjudicating Authority in IA

290/ND/2024 in CP-50/241-242/ND/2022 is hereby set aside.

20. The Appellant/ Respondent No. 2 may file the reply before the Learned

Adjudicating Authority with an advance copy to Learned Counsel for the

Applicant /Respondent No. 1 within a week from today.

21. We specifically provide and observe that if reply is not filed by the

Appellant/ Respondent within one week from today, the Impugned Order

passed by the Learned Adjudicating Authority as well as the order dated

08.10.2024 would automatically revive.

22. Since, some prejudice appears to have been caused to Respondent No.

1 which in our considered opinion may be compensated by cost, we direct

the Appellant to pay the cost of Rs. 10,000/- to Respondent No. 1 within one

week from today.

23. The appeal is disposed of in above terms. Pending I.A.'s are also

disposed of.

[Justice Mohammad Faiz Alam Khan] Member (Judicial)

[Mr. Naresh Salecha] Member (Technical) Sim/mr

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