Vivekanand Rai & Anr & Ors vs Chemie-Tech Projects Limited & Anr & Ors

(Arising out of Order dated 24.09.2025 passed by the Adjudicating Authority, National Company Law Tribunal, Division Bench, Court No. 1, in IA (Rest.)/30(AHM)2025 in C.P.(IB)/13(AHM)2025.)

IN THE MATTER OF: Vivekanand Rai &Anr. ...Appellant Versus Chemie-Tech Projects Ltd. ...Respondent

Present: For Appellant : Mr. Arijeet Banerjee, Advocate.

For Respondent : Mr. Vishwendra Verma, Advocate.

JUDGMENT

Per Justice Sharad Kumar Sharma Member (Judicial) The Appellants in the instant Company Appeal, had contended that they have

been working with the Respondent No. 1 as their employees on a contractual

basis, in the capacity of consultant for business development on which they

had worked for a period of 11 months from 01.04.2020, thereafter from

03.03.2021, 28.01.2022 and 02.01.2023, and accordingly, they claimed to

have worked till 25.04.2023. It was also the case by the Applicant/Appellant, that Appellant No. 1 was working as a General Manager Business

Infrastructure, in pursuance of the appointment letter, that was issued in his

favour on 07.02.2019 and was employed in the said capacity till 31.10.2022.

Similarly, the Appellant/Applicant No. 2, Probir Rakshit claimed to be working

with Cooperate Debtor as a consultant for business development centres and

worked so in the said capacity till 25.04.2023.

2. The Respondent No. 1 company is a Pvt. Ltd. company which is said to

have been incorporated as such under the provisions of the Indian Companies

Act, 1956, and is shown to be involved in the business of providing EPC

Solutions and Services, with its registered office situated in Ahmedabad and

a group head office at Sharjah.

3. It was the case of the Appellant that under the appointment letter of

07.02.2019, the Appellant was expected to receive the settled salary of Rs.

2,81,066/- before TDS deductions per month, till his resignation and relieving

on 31.10.2022, and hence, according to the Appellant No. 1, his salary fell

due to be paid for 17 months, amounting to Rs. 42,50,000/- and besides that,

there was an unpaid Provident Fund amount of Rs. 13,40,000/- which was

payable for 20 months which has not been remitted. Hence, there was a total

claim raised by the Appellant No. 1 for Rs. 55, 90,000/-.

4. Similarly, the Appellant No. 2 had come up with the case that he was

employed on salary of Rs. 1, 83,333/- per month, along with the

reimbursement of the travel expenses, telephone expenses and other

expenses, and allowances and consequent to his resignation and relieving on

25.04.2023, there was an outstanding amount due to be paid of Rs. 47,

Page 2 of 9 38,056/- which fell in arrears of salary. From the unpaid salary, certain

amount of TDS was also to be deducted to be payable towards the Income Tax

Dues.

5. It is because of the salary dues of Appellant No. 1 totalling to about Rs.

55, 90,000/- and for Appellant No. 2 totalling to about Rs. 52,57,216/-. A

proceeding under Section 9 of the Code was drawn by filing of an application

before the Learned Tribunal, which was numbered as C.P.(IB)/13(AHH) 2025.

The Company Petition thus preferred, it remaining pending. It's that on

05.05.2025, a Company Application was listed for final argument, and it is

alleged by the Appellant that because of the sudden medical exigency, the

Counsel for the Appellant had to take leave from the court premises, and

hence, he was not able to appear when the case was called out. It is contended

by the Appellant that its due to the sudden medical emergency of the counsel

of the Appellant, he could not attend the matter on 05.05.2025, and the same

was dismissed for want of prosecution.

6. The Appellant, in order to justify his diligence in pursuing the

proceedings, is said to have written an e-mail communication to the Registrar

of the NCLT on 09.05.2025, informing him about the reasons for his non-

appearance on 05.05.2025. This is not a process contemplated under law to

explain reasons for absence in a judicial proceeding. A very peculiar story has

been developed by the Appellant, though it is not under any of the process

contemplated under law, that the e-mail communication of 09.05.2025 was

reverted by the Registrar of the NCLT orally. Its not within the ambit of

jurisdiction of functioning of registrar of NCLT, to revert emails, explaining

Page 3 of 9 absence in the judicial proceedings, of any of the parties involved in it. Hence

not acceptable being a converted ground developed by the appellant for the

purposes of restoration.

.

7. The theory of oral reversion of the information from Registrar on

02.07.2025, is an unestablished fact. In fact, this plea has been taken by the

Appellant before NCLT to bridge the gap of the restrictions of limitation, which

the Appellant would have been facing as a consequence of filing of the

Restoration Application only on 02.07.2025. The Restoration Application was

preferred on 02.07.2025, which was numbered as I.A. (Restoration

Application/30AHM of 2025. The said restoration application was actually

filed before the Registry of the NCLT on 15.07.2025. The application thus

preferred by the Appellant was showing to have been preferred by invoking

the provisions contain under Section 60(5) of IBC, 2016, which in fact was

made to be read with Rule 48(2) of the NCLT Rules, 2016, i.e. the provisions

which prescribes for vesting of the powers with the Tribunal for recalling its

order of those proceedings, which have been dismissed for want of

prosecution. In accordance with the Rule 48, which is extracted here under

reads as such:-

"48. Consequence of non-appearance of applicant.-

(1) Where on the date fixed for hearing of the petition or application or on any other date to which such hearing may be adjourned, the applicant does not appear when the petition or the application is called for hearing, the Tribunal may, in its discretion, either

Page 4 of 9 dismiss the applicant for default or hear and decide it on merit.

(2) Where the petition or application has been dismissed for default and the applicant files an application within thirty days from the date of dismissal and satisfies the Tribunal that there was sufficient cause for his non-

appearance when the petition or the application was called for hearing, the Tribunal shall make an order restoring the same.

PROVIDED that where the case was disposed of on merits the decision shall not be re-opened."

8. The rules prescribes for that under sub-Rule 2 of Rule 48, of the Rules,

that the application has to be preferred within '30 days', from the date of

dismissal, and it would be maintainable only upon satisfaction being recorded

pertaining to the 'sufficiency of cause', for non-appearance, when the

proceedings was called for hearing. In the light of the provisions contained

under sub-Rule 2 of Rule 48, the law specifically contemplates to provide for

30 days of time to prefer a Restoration Application. According to the Appellant

himself, the Petition was dismissed on 05.05.2025, and the Restoration

Application was preferred by the Appellant by filing before the Registry of

NCLT only on 15.07.2025. It is this application, which has been dismissed by

the Learned Tribunal by the impugned order dated 24.09.2025, against which

the Appellant is before us.

9. If we simply determined the period of limitation from the date of the

passing of the order of dismissal is default i.e., 05.05.2025, the Restoration

Application under Rule 48 of Rules was apparently shown to have been

Page 5 of 9 preferred on the 76th day, and hence, it was much beyond the prescribed

period of limitation as contemplated under sub-Rule 2 of Rule 48. Besides

that, the Restoration Application, at the time when it was preferred before the

Ld. Tribunal on 15.07.2025, was not accompanied with any delay

condonation application, and the same was accordingly dismissed by the

impugned order. However, in the application, that was preferred by the

appellant for seeking restoration of the company Petition by recalling of the

order dated 05.05.2025, the ground as pleaded was that the counsel had

suddenly fallen ill and he had to undergo a medical emergency, and because

of certain leg injury, he could not remain present throughout the hearing on

said date i.e., 05.05.2025, and it has been alleged by the appellant that after

getting information about the dismissal on 09.05.2025, the Appellant had

proceeded to file the Restoration Application on 15.07.2025.

10. The Ld. Tribunal has rejected the application primarily on the ground

that once a particular act is contemplated under Rule to be taken in a

particular fashion, it has to be like that only as it has been prescribed under

law and not otherwise. A finding has been recorded by the Ld. Tribunal in the

Impugned Order that there was a delay of about 77 days after the dismissal

order of 05.05.2025, which apparently happens to be beyond limitation under

Rule 48 of the rules, and more importantly, that the appellant had not sought

any condonation of delay by filing of an application under Section 5 of

Limitation Act, 1963. Hence, at that eventuality, it would be deemed that the

Appellant by his conduct had not been able to portray the exceptional

circumstances under which the dismissal order of 05.05.2025 could have

Page 6 of 9 been recalled, when he himself has preferred the Restoration Application after

lapse of 77 days without being supported by an independent delay

condonation application. The recourse to the e-mail communication of

09.05.2025, to the Registrar was not accepted by the Ld. Tribunal, and rightly

so, because it cannot be taken as to be a substantial ground for condonation

of delay, particularly when the formal application for delay condonation was

filed at the later stage. The Learned Tribunal, after taking into consideration

the ground that was taken regarding medical exigency, did not accept the

same in the absence of there being any medical documents filed, nor the same

being supported by the medical certificate.

11. After hearing the Learned Counsel for the Appellant and upon perusal

of the records, as well as the grounds taken by the Appellant, we are of the

view that, even taking for granted when there is a Restoration Application,

first of all, it ought to have been preferred within 30 days from the date of

passing of the order i.e. 05.05.2025, and if it has not been so, for whatsoever

reason the Appellant was restricted from filing the Restoration Application

within time under law, at least, the reasonable process provided under law

that the Appellant should have satisfactorily explained the delay by filing of

Restoration Application. Having not done so, the Tribunal in itself by stepping

into the shoes of appellant, could not have drawn an inference of the

genuineness of ailment, as it was expressed in the Restoration Application,

taking it as to be as a satisfactory ground for seeking a restoration. Ailment

as expressed in the Restoration Application since unestablished could not be

a ground for restoring the company petition, hence it could not be taken as to

Page 7 of 9 be a ground to satisfactorily explain the delay that has occasioned in filing the

Restoration Application.

12. Since seeking a condonation of delay by invoking Section 5 of the

Limitation Act, 1963 entails a reasonable explanation of delay too, which has

to be backed by satisfaction, and that was not being established by sufficient

cause as prescribed under sub-Rule 2 of Rule 48 of NCLT Rules, 2016. We are

of the view that until and unless the Appellant had filed a delay condonation,

along with the Restoration Application, the Restoration Application in itself on

merits could not have been taken into consideration because of the first

embargo, which the Appellant was required to cross over under law was to

satisfy the reasons for delay, and in the absence of any effort being made by

the Appellant to reasonably explain the reason for delay, there was no cause

for the Ld. NCLT to consider the Restoration in itself, because until and unless

the delay was filed in support thereof, it could not be said that the restoration

application, itself had matured to be considered on merits. Hence, the

dismissal of the Restoration Application on the ground of non-seeking of a

condonation of delay by filing of an application under Section 5 of Limitation

Act, 1963 itself cannot said to be vitiated, may be that there might have been

a plausible ground for absence of the Counsel on 05.05.2025 but it remained

unexplained in absence of delay condonation.

13. Even there is no logical reason that has been forthcoming in the

application or in the arguments itself as to what held the Appellant from filing

of an appropriate delay condonation application in support of the Restoration

Application. Thus, the Appellant has to blame himself for his own dereliction

Page 8 of 9 for not effectively contesting the proceedings, for pressing upon the

Restoration Application only after seeking a condonation delay application,

which admittedly has occasioned when the application was preferred after

lapse of 77 days, which was to be determined from 05.05.2025. Owing to the

aforesaid reason, since there was no explanation of delay, coupled with the

fact that there was no supporting application filed seeking to condone the

delay, be it for whatsoever reason, the Restoration itself could not be

considered on its own merit because judiciously it will not subsisting to be

treated to survive to be considered until and unless the first step of

condonation of delay is crossed over. Hence, the Company Appeal as against

the rejection of the Restoration Application due to non-filing of delay

condonation application does not call for any interference. Hence, the same

would stand dismissed.

[Justice Sharad Kumar Sharma] Member (Judicial)

[Arun Baroka] Member (Technical)

[Indevar Pandey] Member (Technical)

MT

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