Rahul Kumar vs Vm Classes (P) Ltd. & Ors

Rahul Kumar ...Appellant

Vs

VM Classes (P) Ltd. & Ors. ...Respondents

Present: For Appellant: Mr. Kaushal Kishore and Mr. Nityanand Mahto, Advocates. For Respondents: Mr. Rakesh K. Sharma, Mr. Nishant and Mr. Shailendra Bhardwaj, Advocates.

ORDER

13.12.2019: The Appellant has challenged the order passed by the

National Company Law Tribunal, New Delhi Bench, Court No. III dated 29th

May, 2019 whereby application for restoration of original Company Petition

filed under Section 241-242 of the Companies Act, 2013 by the Appellant has

been rejected with following observation:

"ORDER

Learned Counsel for the petitioner is present. In CA No.

363/C-III/ND/2019, which has been moved in relation to the

petition filed under Section 241/242 of the Companies Act,

2013 seeking for the restoration of the petition to its original

number as the same was dismissed for non-prosecution vide

order dated 25.4.2019 by this Tribunal. Paragraph-2 of the

application the following submission have been made:

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"The Hon'ble Tribunal vide order dated

25.4.2019 further observed that there was no

appearance on behalf of the petitioner, even

though the junior colleague of the Counsel for the

petitioner had appeared and attendance sheet

was signed. The Tribunal however, proceeded to

dismiss the petition for non-prosecution. A copy

of the said order dated 25.4.2019 is being

appended herewith as Annexure-A/1. "

However, perusal of the order dated 25.4.2019

specifically shows that even though somebody has signed

the attendance sheet, however, in view of non-prosecution on

the part of petitioner when the matter was called by this

Tribunal and hence was constrained to dismiss this petition

for non-prosecution and as well as taking into consideration

the earlier orders passed by this Tribunal. Perusal of the

order sheet commencing from 23.8.2018 consistently shows

that either an adjournment has been sought for o the part of

petitioner on one reason or the other there has been no

Company Appeal (AT) No. 292 of 2019 -3-

appearance on the part of petitioner as even today, service to

the Respondents is not complete, to which, in this

Application, it is averred there is a change of address of the

respondents and service was not complete and in the

circumstances, affidavit of service has not been able to be

filed. We find no plausible reasons as in the absence of

address of R-2 & R-3, under NCLT Rules, 2017, the petitioner

could have availed other modes and of substituted service as

contemplated under Rule 52 of NCLT Rules. It is evident

from the averments made in the application despite the

lapses on the part of petitioner, the petitioner has chosen to

blame this Tribunal as evident from the above said

Paragraph extracted from the application. We find it totally

unwarranted and more so, in view of the conduct of the

petitioner, having signed the attendance sheet but not

appeared before this Tribunal when it was called which

clearly exposes the conduct which cannot be condoned.

Taking into consideration all the above aspects, we are

not in a position to allow this application and under the

circumstances, this petition stands dismissed. "

Company Appeal (AT) No. 292 of 2019 -4-

2. Mr. Rakesh K. Sharma, Advocate appearing on behalf of the contesting

Respondent wanted to contest on the ground that the Appellant is simply

dragging the matter and not cooperating with the Tribunal and wants to engage

the respondent in unnecessary litigation by preferring other cases. It is further

pointed out that the Appellant has tried to blame the Tribunal for his own

lapses and played an unwarranted role by signing the attendance sheet while

staying away from proceedings, thus fabricated the record, as noticed by the

Tribunal

3. We find no ground to interfere in the impugned order dated 29th May,

2019. The appeal is accordingly dismissed. No costs.

[Justice S. J. Mukhopadhaya] Chairperson

[Justice Bansi Lal Bhat] Member (Judicial)

[Justice Venugopal M.] Member (Judicial) am/gc

Company Appeal (AT) No. 292 of 2019