Sushil Kumar & Anr vs Shilpa Garments Pvt. Ltd. & Ors

[Arising out of Order dated 5th December, 2018 passed by National Company Law Appellate Tribunal in Company Appeal (AT) No.255 of 2018]

IN THE MATTER OF:

1. Shri Sushil Kumar R/o W-42, Sector -11 Noida, Dist. Gautam Budh Nagar, UP - 201301 ...Appellant/Applicant No.1

2. Mr. Gaurav Aggarwal R/o W-42, Sector -11 Noida, Dist. Gautam Budh Nagar, UP - 201301 ...Appellant/Applicant No.2

Versus

1. M/s. Shilpa Garments Pvt. Ltd. 4251, Jai Mata Market, Tri Nagar, New Delhi - 110035 ...Respondent No.1

2. Mr. Hari Ram, R/o 12-A, Sundar Nagar, Outside Zira Gate, Ferozepur, City Punjab - 152002 ...Respondent No.2 2

3. Mrs. Dinesh Kumari R/o 12-A, Sundar Nagar, Outside Zira Gate, Ferozepur, City Punjab - 152002 ...Respondent No.3

For Appellants: Mr. Kumar Ankur and Mr. Bipul Kedia, Advocates.

For Respondents: Mr Iswar Mohapatra and Mr. Aaryan Sharma, Advocates.

JUDGEMENT

(6th September, 2019) A.I.S. Cheema, J. :

1. the Applicants are riding series of defaults in the participation of

their litigation. The Applicants who are comfortably holding on to control

of the original Respondent Company - M/s. Shilpa Garments Pvt. Ltd. are

seeking recall Orders of this Tribunal dismissing their Appeal in default on

5th December, 2018. Record shows that Respondents 2 and 3 - original

Petitioners filed the Company Petition - CP 286/ND/2017 before National

Company Law Tribunal, New Delhi (NCLT - in short) and NCLT noted that

the Respondents, although they were duly served, failed to put in any

appearance to contest the allegations made against them and were

accordingly ex-parte. Consequently, NCLT examined the matter and

passed the Orders which were impugned in the Appeal.

2. In the Appeal on 29.11.2018, the counsel for Respondent was

present and we passed the following Order:-

IA No.1931, 1932 and 1933 of 2019 in Company Appeal (AT) No.255 of 2018 3

"O R D E R

29.11.2018 - None present for appellant. List the

matter for hearing on 5th December, 2018. If on that

date also none appears for the appellant, suitable

orders will be passed."

On 5th December, 2018, following Order came to be passed:-

"O R D E R

05.12.2018 - This matter was kept back earlier as

none was present for the appellants. Even in the

second round nobody is present. Seen the orders of

this Tribunal dated 29.11.2018. Even on that date

nobody was present for the appellants and we had

adjourned the matter to 5th December, 2018 i.e.

today. We had directed that if on the adjourned date

also none appears for the appellants, suitable orders

will be passed. Seen record. Counsel for Respondents

present. As nobody is appearing for the appellants

and the appellants are also not present, when the

matter has come up for hearing the appeal is not

prosecuted. As such the appeal is dismissed in

default of the appellants. No order as to costs.

IA No.1931, 1932 and 1933 of 2019 in Company Appeal (AT) No.255 of 2018 4

3. Thereafter, as per record of this Tribunal, free Copy of the Order

dated 5th December, 2018 was sent by the Registry vide letter dated 6th

December, 2018 which was issued on 7th December, 2018, inter alia to the

Applicants.

4. IA 1932/2019 and 1933/2019 came to be filed only on 28 th March,

2019. The IA seeks setting aside of the Order dated 5th December, 2018.

The delay condonation Application - IA 1933 of 2019 sought condonation

of 78 days of delay in filing the Application for recall of the Order dated

05.12.2018. The conduct of the Applicants is further apparent from IA

1931 of 2019 which shows that even for refiling, the Applicants who are

from Delhi were required to seek condonation of delay of 65 days. So much

so for diligence.

5. In the Application for condonation of delay of 78 days, the Applicants

conveniently put the blame on earlier Counsel and also come up with

excuses like being busy in marriage of younger daughter on 7th March,

2019. They claim to have sent the complaint against the earlier Counsel

on 27th March, 2019 to the Bar Council. In the complaint to the Bar

Council, the Applicants claimed that they came to know about dismissal

of the Appeal on 22nd February, 2019 when they were served with copy of

execution in the matter.

6. When the matter came up before us, looking to the record of Registry

of this Tribunal, we asked the Applicants to file Affidavit as to the date

when free copy of the Order dated 5th December, 2018 was received by

IA No.1931, 1932 and 1933 of 2019 in Company Appeal (AT) No.255 of 2018 5

them and the Applicant - Gaurav Aggarwal has filed Affidavit - Diary

No.12985 on 09.07.2019 accepting that copy of the Order dated 5th

December, 2018 was received in the 3rd week of December, 2018. This is

against what was put in Complaint to Bar Council which shows their

knowledge on 22.02.2019. It is apparent that the Applicants are resorting

to falsehood and they have not been diligent in responding to the litigation

and are not coming with clean hands while seeking relief. No specific

provision for recall of the Order is indicated. However, even if we rely on

Rule 11 of the NCLAT Rules, 2016 to invoke inherent powers to meet the

ends of justice, as we find that the Applicants are not with clean hands,

we do not think that this is an appropriate case for which the inherent

powers should be invoked. The Applicants cannot be allowed to go on

creating complications at each level of the litigation which has an effect of

protracting the litigation after they are comfortably in command of the

concerned Company. Equity does not tilt in favour of such litigants.

7. We do not find any substance in these Applications. The same are

rejected.

[Justice A.I.S. Cheema] Member (Judicial)

[Balvinder Singh] Member (Technical) /rs/nn

IA No.1931, 1932 and 1933 of 2019 in Company Appeal (AT) No.255 of 2018