Ricoh Thermal Media Asia Pacific Pvt. ... vs Efficient Data Pvt. Ltd

(Arising out of order dated 26.08.2019 passed by the Adjudicating Authority, National Company Law, Tribunal, Mumbai Bench, Mumbai, in CP(IB)-4140/(MB)/2018)

IN THE MATTER OF:

M/s Ricoh Thermal Media Asia Pacific Pvt. Ltd. 902, Atrium 2, Chakala, Andheri-Kurla Road, Andheri East, Mumbai-400 059 ...Appellant

Vs

M/s Efficient Data Pvt. Ltd. 231 B II, Meghdam Manor, Dr. S.S Rao Road, Lal Baug, Mumbai- 400 012 ....Respondent Present: For Appellant: Ms. Komal Mundhra and Mr. Saurabh Agrawal, Advocates. For Respondent: No appearance.

JUDGMENT

18.03.2020 The instant Appeal is projected by the Appellant as an

'Aggrieved person' in respect of the impugned order of dismissal of CP(IB)-

4140/(MB)/2018 dated 26.08.2019 passed by the Adjudicating Authority

(National Company Law Tribunal, Mumbai Bench, Mumbai).

2. The Adjudicating Authority in the Impugned Order had observed the

following:

"No one responds from either side. The petition is

dismissed in default of the parties."

Company Appeal(AT)(Insolvency) No. 1295 of 2019 Page 1 of 3

3. The Learned Counsel for the Appellant submits that the Appellant/

'Operational Creditor' was under the bonafide belief that the matter was Listed

before the Adjudicating Authority on 16.09.2019, as initially noted, as was

evident from the 'Cause List'. As such the Appellant was not aware of the hearing

the matter on 26.08.2019, when the Petition was dismissed for default. Only on

16.09.2019, the Appellant was apprised of the fact that the matter was already

dismissed.

4. It transpires that in CP(IB)-4140/(MB)/2018 (filed under Section 9 of the

Insolvency and Bankruptcy Code, 2016) on 10.06.2019 no one responded from

either side and the matter was directed to be listed on 16.08.2019 'For

Admission'. Again on 26.08.2019, there was no response from either side and

the petition was dismissed for default of the parties.

5. Although the Appellant has filed the instant Appeal before this Tribunal

invoking Section 61 of the IBC yet, in law the Appellant has a viable, effective

and equally efficacious remedy of projecting an Application for restoration of

CP(IB)-4140/(MB)/2018 setting out sufficient reasons or causes for non-

appearance on the dates fixed by the Adjudicating Authority/Tribunal.

Admittedly, the Appellant has not filed any Application for restoration of the

petition which was dismissed for default on 26.08.2019 by resorting to Rule-11

of the NCLT Rules, 2016.

6. In fact, Rule-11 of NCLT Rules-2016 speaks of 'Inherent Powers of the

National Company Law Tribunal' and the same can be exercised to meet ends of

justice or to prevent an abuse of process of the Tribunal. Therefore, this Tribunal

Company Appeal(AT)(Insolvency) No. 1295 of 2019 Page 2 of 3 simpliciter, at this stage, grants permission to the Appellant to move before the

Adjudicating Authority and to file an Application seeking restoration of the main

Petition, by setting out the reasons for non-appearance on earlier occasions

before the Adjudicating Authority/Tribunal, within one week from the date of

receipt of this Judgment. It is open to the Appellant as an 'Applicant' to raise all

factual and legal pleas before the said Authority and to seek redressal of its

grievances in accordance with Law, if it so desires or advised. If the Appellant

files an Application for restoration of the main petition within time specified by

this Tribunal before the Adjudicating Authority, the same may be taken on file

(if it is found to be otherwise in order) and necessary orders be passed on merits,

of course by providing adequate opportunities to the parties by adhering the

'Principle of Natural Justice', within two weeks thereafter.

7. With the above observations and directions, the present Appeal stands

disposed of. No costs.

[Justice Venugopal M.] Member (Judicial)

(Kanthi Narahari) Member(Technical)

Akc/Nn

Company Appeal(AT)(Insolvency) No. 1295 of 2019 Page 3 of 3