Rudra Mercantile Private Limited vs Swastik Metaforge Private Limited

Company Appeal (AT) (Ins.) No. 719 of 2023 & I.A. No. 2396 of 2023

IN THE MATTER OF: Rudra Mercantile Pvt. Ltd ...Appellant Regd. Office: 501 A, Link Rose, Linking Road, Santacruz - West Mumbai - 400054

Versus

Swastik Metaforge Pvt. Ltd ...Respondents Regd. Office: G-8, Ground Floor, Lajpat Nagar - I, New Delhi - 110024

Present: For Appellant : Mr. Ajay Kumar Jain, Mr. Sourit Arora, Advocates. For Respondents : Mr. Dhrubajit Saikia, Advocate.

(27th September, 2023)

1. This appeal is directed against the order dated 28th March, 2023 passed

by the 'National Company Law Tribunal, Bench-III, New Delhi (hereinafter

referred as to 'the Adjudicating Authority) by which an application bearing

Rest.A-47/2023 in IB-2559(ND) 2019 filed by the M/s. Rudra Mercantile

Pvt.Ltd (Appellant herein) for restoration of the petition, has been dismissed.

2. While passing the impugned order, the Adjudicating Authority has

observed the followings:

"Rest.A-47/2023

"This application has been filed seeking restoration of IB-2559/ND/2019

which was dismissed for non-prosecution vide order dated 05.08.2023. The

Company Appeal (AT) (Ins.) No. 719 of 2023 & I.A. No. 2396 of 2023 2

application has been filed on 21.02.2023 after the period of limitation provided

under Rule 48(2) of NCLT Rules, 2016. This application has been accompanied

with any terms of application seeking condonation of delay.

The present application is therefore dismissed."

3. Ld. Counsel for the Appellant has submitted that the Authorized

Representative of the Appellant Company is 75 years old woman and was

suffering from severe illness, surviving on Oxygen Supplements, B-PAP in her

day to day life. Therefore, the Authorized Representative of the Appellant

company could not get the status of the petition filed before the Adjudicating

Authority and was thus dependant on his counsel. Thereafter, the Appellant

had inquired about the status of her petition from its erstwhile Counsel but

his counsel did not respond in time and later on informed the Appellant that

he could not able to appear before the Adjudicating Authority to which the

Adjudicating Authority has dismissed the petition for non-prosecution. By the

time the Appellant came to know about the orders, there was already a delay.

The Appellant with its new Counsel had approached the Adjudicating

Authority by filing a restoration application bearing Rest.A-47/2023. The

Adjudicating Authority vide its impugned order dated 28.03.2023 has

dismissed the said application on the ground of delay in filing of the

Application for restoration.

4. On notice, ld. Counsel for the Respondent has appeared and opposed

the appeal on similar pleas which has been recorded by the Adjudicating

Authority in the impugned order. Further, Ld. Counsel for the Respondent

has submitted that the Appellant has neither given any cogent reasons in the

Company Appeal (AT) (Ins.) No. 719 of 2023 & I.A. No. 2396 of 2023 3

application seeking restoration of the Application for 150 days' delay in filing

the Restoration Application nor filed any application for condonation of delay

to condone those days. It is submitted that non-appearance of the Appellant

has been recorded in the order dated 23.11.2021 passed by the Adjudicating

Authority which read as under:

"From the previous orders, it is also seen that the Petitioner in

the matter has not been present on 18.03.2021, 10.08.2021

and on today's hearing, no one present on behalf of the

Operational Creditor.

In view of the above, the finally listed for further consideration

as a last chance for ensuring the appearance on behalf of the

operational creditor on 11.01.2022 on the said date, the

petition shall be dismissed in default of non-prosecution."

5. Ld. Counsel for the Respondent has referred the Judgment of Hon'ble

Supreme Court in the case of Esha Bhattacharjee Vs. Managing Committee of

Raghunathpur Nafar Academy & Ors. (2013) 12 SCC 649, it is held that the

"Condonation of delay cannot be granted as a matter of course and such a

liberal approach cannot be taken when there are no proper grounds given by

the Appellant/Applicant".

6. We have heard Counsels for the parties and are of the considered

opinion that the reason given by the Appellant are not sufficient reason to

allow the appeal.

Company Appeal (AT) (Ins.) No. 719 of 2023 & I.A. No. 2396 of 2023 4

7. In view of the aforesaid facts, we are satisfied that there is no sufficient

cause assigned by the Appellant for the purpose of allowing the present

appeal. Without going into the merit of the case, we observe that the

Adjudicating Authority has rightly dismissed the petition for non-prosecution.

8. Hence, the present appeal is dismissed. No order as to costs.

[Justice Anant Bijay Singh] Member (Judicial)

[Arun Baroka] Member (Technical)

Raushan

Company Appeal (AT) (Ins.) No. 719 of 2023 & I.A. No. 2396 of 2023