Shree Bankey Bihari Enterprises vs M/S Divyam Developers Pvt Ltd

M/s. Shree Bankey Bihari ....Appellant Vs. M/s. Divyam Developers Pvt. Ltd. ...Respondent For Appellant: Mr. Amit Dhall, Advocate. For Respondent:

ORDER

(Through Virtual Mode)

25.02.2022: Heard Learned Counsel for the Appellant.

2. This Appeal has been filed against the order dated 09.12.2021 passed

by the Adjudicating Authority (National Company Law Tribunal), New Delhi

Bench-IV by which the Restoration Application filed by the Appellant to restore

the IBC proceedings has been rejected. The Appellant has filed the Application

on which notices were issued and the Adjudicating Authority noticed in its

order dated 05.02.2020 that last chance was given to settle the matter and

next date was fixed on 16.03.2020. On 16.03.2020, no one appeared on behalf

of the Applicant. Thereafter, matter was listed on several dates for about 1 ½

years and after several dates, matter was again taken up on 09.07.2021 and

in absence of the Applicant, it was dismissed for non-prosecution. Application

was filed for restoration and recall of the order which has been rejected.

3. Learned Counsel for the Appellant submits that although there was

slackness on the part of the Appellant to prosecute the matter but this was 2

due to the fact that counsel who was appearing on behalf of the Appellant went

home. He further submits that the cheque which was given to the Appellant

by the Corporate Debtor was dishonored and for that, proceeding under

Section 138 of the Negotiable Instrument Act had already been initiated by the

Appellant.

4. We have considered the submissions of the Learned Counsel for the

Appellant and perused the record.

5. The Adjudicating Authority has considered in detail the proceedings

taken by the Adjudicating Authority on different dates and noticed that there

is no appearance on behalf of the Appellant for about 1 ½ years and no

plausible explanation has come for absence and the Adjudicating Authority

being not satisfied that any sufficient ground has been made out has rejected

the Application. We are of the view that the Adjudicating Authority after due

consideration of all pleas of the Appellant has passed an order rejecting the

Application in which no interference is warranted in this Appeal. It is always

open for the Appellant to pursue his proceedings under Section 138 of the NIA

Act and take such other proceeding for recovery of dues as permissible in law.

6. With these observations, the Appeal is dismissed.

[Justice Ashok Bhushan] Chairperson

[Dr. Alok Srivastava] Member (Technical) Anjali/nn