Rajiv Dhamija vs Alliance Broad Band Services Private ...

NATIONAL COMPANY LAW APPELLATE TRIBUNAL PRINCIPAL BENCH, NEW DELHI Company Appeal (AT) No.295 of 2026 In the matter of: Rajib Dhamija ...Appellant Vs. Alliance Broad Band Services Pvt. Ltd. &Ors. ...Respondents

Present: Appellant: Mr. Samar Bansal, Sr. Advocate with Mr. Supratik Sarkar, Advocate Respondent: Mr. Ratnanko Banerjee, Sr. Advocate with Mr. Riyanshu Agarwal, Ms. Swapna Choubey, Mr. Kanishk Kejriwal, Advocates

ORDER

(Hybrid Mode) 12.08.2026 - It is a very short issue that engages our consideration in the

instant Company Appeal, wherein the appellant challenges the impugned order

dated 04.05.2026, passed by the learned NCLT, Kolkata Bench, in Restoration

Application (COMPANIES ACT)/7(KB)2025, preferred in CP/15(KB)2022. The

effect of the impugned order had been that, the restoration application preferred

by the appellant/applicant was dismissed resulting into the absolute closure of

the proceedings under Sections 241 and 242 of the Companies Act, 2013,

without venturing on the merits of the controversy.

2. The precise facts, which are germane to the present proceedings are that

the appellant had instituted a company petition, being CP/15(KB) 2022 by

invoking the provisions contained under Sections 241 and 242 of the Companies

Act, 2013. At the time of institution of the proceedings on 11.01.2022, the 2

company petition, was accompanied by an application for waiver by invoking the

provisions contained under Section 244 of the Companies Act, 2013.

3. The learned Tribunal, while taking cognizance to the proceedings, had

initially issued notice to the respondent and reply was called upon on the

application under Section 244 of the Companies Act, as well as on the Company

Petition. The learned Tribunal, in its proceedings has recorded that, the

application filed under Section 244 of the Companies Act, 2013 for the grant of

waiver, would be considered after the exchange of pleadings, which would be

inclusive of the pleadings to the proceedings to the company petition also.

4. No reply was filed and the last opportunity was granted by the learned

Tribunal to the respondents by passing an order of the said effect on 23.03.2023,

consequent to which, on 26.06.2023, the reply was filed by the respondent,

which was responded by the appellant by filing his rejoinder to it. By the next

date the proceedings were taken up on 14.03.2024, the pleadings have already

exchanged hands and thereafter, on couple of occasions, when the company

petition was listed before the learned Tribunal, the same could not be reached,

on account of paucity of time, till ultimately, the Company Petition was taken up

on. When the company petition was taken up on 21.03.2025, the learned

Tribunal has proceeded to pass an Order, dismissing the company petition for

want of prosecution. If we scrutinize the order dated 21.03.2025, it is rather

contradictory in nature, for the reason being that in the opening line, the learned

Tribunal observes that the Counsel for the petitioner was present and thereafter, 3

simultaneously, it had dismissed the CP for want of prosecution. The relevant

extract of the order is given hereunder: -

"O R D E R

1. Ld. Counsel appearing for the petitioner present.

2. It is submitted by Ld. Counsel Ms. Swapna Choubey appearing for the respondent that no one has been entering appearance for the Petitioner for quite some time. The last appearance was made by the petitioner was on 09 th May, 2024, therefore it seems the petitioner is not interested to pursue the matter any further.

3. Accordingly, we dismissed the main matter for non- prosecution with all connected CA's."

5. At this stage, it would be relevant to mention that the date on which the

company petition was dismissed for want of prosecution i.e. on 21.03.2025, the

learned Tribunal was considering the proceedings under Section 213, Section

241(1), 242 (4) and 244(1) of the Companies Act, 2013, inter alia meaning that

the waiver application, too was also a subject matter, under consideration before

the learned Tribunal when the company petition was dismissed for want of

prosecution.

6. Seeking its recall, the appellant had filed a restoration application on

17.04.2025 i.e. within 27 days of the Order, praying for recall of the order dated

21.03.2025 and to restore the company petition to its original number, to be

adjudicated on merits.

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6. The restoration application was opposed. The respondents filed their

objection to the Restoration Application. Subsequently, when on 04.05.2026, the

Restoration Application was listed, the learned Tribunal proceeded to reject the

same by virtue of the impugned Order. Hence the present Company Appeal.

7. If we scrutinize the principal Order of 21.03.2025, dismissing the company

petition for want of prosecution, it was on a simplistic ground that, since none

has appeared for the appellant to press the proceedings before the learned

Tribunal, it proceeded to dismiss the petition. When the appellant had filed the

Restoration Application, the appellant had contended therein the application

that, the absence of the appellant on 21.03.2025 was not deliberate or

intentional, it was pleaded in para - 14 of the Restoration Application that, on

the date when the matter was listed i.e. 21.03.2025, it skipped the attention of

the petitioner to take note of the listing of the matter and it was due to human

inadvertence, the appellant could not attend the proceedings on the said date.

The appellant contended that, the impression that was created by the

respondents in their objection, as well before the learned Tribunal, when the

company petition was taken on 21.03.2025, as if the appellant was not interested

to pursue the company petition, which in fact, was contrary to the records

because on couple of earlier dates, it was not that the appellant who had failed

to appear, but rather, the company petition could not be taken up because of

the paucity of time and for that reason, the appellant cannot be attributed with

any malice or be burdened with the responsibility.

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8. The restoration application, thus preferred on 17.04.2025 came up for

consideration before the learned Tribunal and the same has been rejected by the

impugned Order dated 04.05.2026.

9. The argument of the learned Counsel for the appellant while questioning

the impugned Order as passed on the restoration application is that, at the stage

when the Tribunal was considering the restoration application, it ought to have

confined itself to record its findings on the proprietary of the appellant's absence

on 21.03.2025 and the reasons connected to it. No other issue touching the

merits of the matter or rights accrued between the parties sought to have been

enforced in the company petition, could at all have been derived or ventured into

by the learned Tribunal at the stage, when the restoration application was being

considered. The procedure adopted by the learned Tribunal, would be per-se

contrary to the law, because it is a settled principal that, on the date when the

restoration application was being considered, there was no company petition

existing in the eyes of law due to its dismissal for want of prosecution on

21.03.2025 and as such until and unless, the Tribunal first proceeds to recall

the said order on the application preferred by the appellant, the Tribunal ought

not to have recorded the finding of facts, based or touching upon on the merit of

the matter for the purposes of deciding the restoration application. The very fact

that the learned Tribunal has proceeded to venture into the merits of the matter

recording findings, touching the merits of the company petition, that was not

called for as at that stage of time. The scope of scrutiny of learned Tribunal was 6

only confined to, whether the absence of the appellant on 21.03.2025 was due

to valid reasons or not.

10. The learned Tribunal wrongly took a view that, since on previous couple of

occasions, the appellant had not appeared that has been derived to be read

against the appellant. The same was answered by the Counsel for the appellant

that, the finding recorded with regards to the earlier proceedings prior to

21.03.2025, may not be a correct interpretation assigned by the learned

Tribunal, for the reason that it was a consistent case of the appellant as

specifically mentioned in paragraphs - 8 and 9 of the restoration application that

on the earlier date fixed the matter could not be taken up on account of paucity

of time, as the learned Tribunal being engaged in other pending matters. Not

taking up of the company petition on merits on those dates cannot be taken as

to be a dereliction or absence of the appellant, which could be borrowed for the

purposes of deciding the instant restoration application.

11. Even otherwise also, it was a settled principal of law that, even if we

presume for the time being, that the appellant had remained absent for a couple

of earlier hearings, that itself cannot be derived to be taken as a basis to reject

the application and more particularly, when the factum of absence as pleaded

by the appellant in the application was a fact not strongly or sustainably denied

by virtue of supporting of credible evidence. A unilateral inference drawn that

the appellant was not interested in prosecuting the said proceedings of the 7

Company Petition, was a self-articulated observations made by the learned

Tribunal, without there being any pleading to the contrary.

12. The finding recorded by the learned Tribunal for deriving it as reason to

reject the application, is his past absence in the proceedings. This cannot be

taken as to be basis, as the learned Tribunal ought to have considered

restoration application on its merits, rather than diving into the past proceedings

to take its wreckage as the basis to reject the application. Law has settled that

the application has to be considered on its own merits, past conduct of the

appellant, should not have affected or influenced the decision on the restoration

application as they become irrelevant. This is what has been laid down in the

matters of Qaiser Sibtain vs District Judge, Allahabad (1996 SCC OnLine All 137)

by the Hon'ble Single Judge of Allahabad High Court as decided in the matters

reported as: -

"6. In exercise of revisional jurisdiction, High Court never

interferes with the concurrent findings of facts unless the

same appears to be perverse. The above proposition is well

established proposition with which there is no scope for any

two opinion. In the present case, the facts have been found

by both the courts below against the petitioner, and,

therefore, I refrain from interfering with the fact so found.

But the fact remains that while considering the question, the

revisional court has dealt with the past conduct of 8

defendant No. 11. It is established principle of law that

while considering the question of grant of adjournment or

recalling of an order, the past conduct is immaterial. The

court has to look into the merit of the case confining to the

date of the order sought to be recalled was passed. The

court has to look out whether sufficient ground has been

made out for the default on the very date or not. Looking into

the past conduct would be an extraneous consideration

which the court should not go into. In that view of the matter,

taking into account the past conduct does not seem to me to

be fair and correct approach adopted by the learned court

below."

Further, the findings are perverse that, the appellant has not been diligently

participating in the proceedings since 03.07.2024. But as per the extract of

records, shown in the impugned order, all the dates after 03.07.2024 till

16.12.2024, it was rather the learned Tribunal's inability to take the matter due

to paucity of time, it does not record the absence of appellant. One more

astonishing feature, which is apparent on record from the findings recorded by

the learned Tribunal that, the learned Tribunal had not considered what

happened between 14.03.2024 till 09.05.2025 i.e. almost over one year. This

itself would render the Judgement to be perverse.

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13. Owing to the above facts, that has been given in the Restoration

Application, as well as the grounds taken in the instant company appeal, we are

of the view that the Order dated 04.05.2026 dismissing the Restoration

Application, while venturing on the merits of the Company Petition, is not

justified in the eyes of law, as it was stretching the issue beyond the subject that,

was being considered by the learned Tribunal on 04.05.2026 i.e. on the

Restoration Application. In that eventuality, the learned Tribunal ought to have

confined itself to the merits of the Restoration Application only, and not on the

merits of the Company Petition for the purposes to derive the reasons to reject

the Restoration Application.

14. Because of what has been stated in the memorandum of appeal, as well

as in the Restoration Application, we feel that the impugned Order of 04.05.2026

cannot be sustained because the learned Tribunal has exceeded its jurisdiction

of deciding the issue on merits at the stage of considering the Restoration

Application and thus has travelled beyond its jurisdiction at the stage when the

restoration was being considered by the learned Tribunal. Thus the impugned

Order of 04.05.2026 rejecting the Restoration Application and the Order of

21.03.2025 dismissing the Company Petition for want of prosecution would

stand quashed.

15. The Company Petition being CP/15(KB)022 presently pending

consideration before the NCLT Bench, Court-1, Kolkata i.e. being directed to be

restored on its original number to be considered on merits from the stage from 10

where the company petition was dismissed for want of prosecution i.e. on

21.03.2025, and proceed to decide the Company Petition on its own merits.

Subject to the above, the Company Appeal stands allowed.

Accordingly, the Company Appeal is disposed of.

All pending interlocutory applications stand closed.

[Justice Sharad Kumar Sharma] Member (Judicial)

[Arun Baroka] Member (Technical)

[Indevar Pandey] Member (Technical) rs/ravi