Yogesh Kumar Agarwal Sole Proprietor Of ... vs Shapoorji & Pallonji Co. Pvt. Ltd

Comp. App. (AT) (Ins) No. 641 of 2023 & I.A. No. 2123, 2124, 2125, 3203 of 2023 IN THE MATTER OF: Yogesh Agarwal Sole Proprietor of Agarwal Steels ...Appellant

Versus

Shapoorji & Pallonji Co. Pvt. Ltd. ...Respondent Present: For Appellants : Mr. Mithun Shashank, Adv. For Respondent : Mr. Abhishek Puri, Adv.

ORDER

Per: Justice Rakesh Kumar Jain: (Oral)

05.10.2023 : This appeal is filed against two orders i.e. 20.09.2022 by

which a petition i.e. C.P. (IB)/387(MB)/2021 filed under Section 9 of the

Insolvency and Bankruptcy Code, 2016 (in short 'Code') was dismissed with

the following order:-

"1. No representation on behalf of the Operational Creditor. Ms. Gayatri Mohite i/b The Law Point, Ld. Counsel for the Corporate Debtor present.

2. Counsel for the Corporate Debtor submits that the company petition was filed on 17.01.2021 claiming an amount of Rs.75 lakh which is below the threshold limit as per the Notification issued by the Ministry of Corporate Affairs vide notification dated 24.03.2020.

3. In view of the above notification, this Bench on perusal of records noticed that the Company Petition was filed below the threshold limit as prescribed under the Code. Hence, this Bench is of the considered view that the Petition filed u/s 9 of the Code is not maintainable and the same is liable to be dismissed. However, the Petitioner is at liberty to approach any forum as per Law.

4. CP (IB)/387(MB)/2021 is dismissed with no costs.

5. Records be consigned to the record room."

2. Thereafter, instead of challenging the order dated 20.09.2022 by way of

an appeal as provided under Section 61 of the Code, the Appellant filed an

application allegedly in the month of October, 2022 though there is no date

mentioned in the application. The said application was assigned Restoration

Application No. (IBC)/09/MB/2023 and was dismissed by order dated

23.03.2023 on the ground that the application is not maintainable because

the order dated 20.09.2022 was passed on merits and the petition was not

simply dismissed for non-prosecution.

3. The present appeal has also been filed alongwith an application bearing

I.A. No. 2123 of 2023 in which it is averred that a delay of 7 days has occurred

in filing of the present appeal.

4. At the outset, Counsel for the Respondent raised an objection about the

maintainability of this appeal having been filed against two orders i.e.

20.09.2022 by which the petition under Section 9 was dismissed on merits

and 23.03.2023 by which the application for restoration of the petition was

dismissed. It is argued by Counsel for the Respondent that the order dated

20.09.2022 was separately amenable to challenge by way of an appeal but the

Appellant did not choose to file the appeal rather filed a flimsy application for

seeking restoration of the petition on the pretext that the order dated

20.09.2022 has been passed in his absence, therefore, his petition has been

dismissed for non-prosecution.

5. Faced with this argument, Counsel for the Appellant has argued that

the order dated 20.09.2022 was passed by the Adjudicating Authority in the

absence of the Appellant, therefore, it was presumed by the Appellant that it

is a case where the petition has been dismissed on account of non-prosecution by the Appellant, therefore, the application for restoration of the petition was

filed by the Appellant seeking recall of the order dated 20.09.2022 and afresh

hearing in the matter to pursue the petition filed under Section 9 of the Code.

In the end, it is submitted that even if the Appellant has not filed the appeal

against the order dated 20.09.2022 and the limitation has already expired yet

this appeal may be considered to have been filed against the order dated

23.03.2023 only in which there is a delay of 7 days.

6. We have heard Counsel for the parties and perused the record with their

able assistance.

7. Facts are not in dispute, therefore, the issue involved is as to whether

the application for restoration of the petition was at all maintainable before

the Adjudicating Authority which has been dismissed by order dated

23.03.2023 which is now stated to have been challenged in this appeal dehors

the order passed on 20.09.2022?

8. In the ordinary course, had an order been passed by the Adjudicating

Authority dismissing the petition filed under Section 9 of the Code only on the

ground of non-appearance of the appellant then the application for recalling

of the order dated 20.09.2022 could have been maintainable but the facts are

otherwise because the order dated 20.09.2022 was passed on merits by the

Adjudicating Authority holding that the petition under Section 9 is not

maintainable as it has failed to cross the threshold limit as per Notification

dated 24.03.2020 issued by the MCA.

9. In our considered opinion, this order could have been challenged by

way of an appeal by the Appellant before the Appellate Authority but the

Appellant did not choose to file the appeal rather filed a frivolous application for restoration of the petition, may be under wrong belief, that the petition has

been dismissed for non-appearance of the appellant only.

10. Thus, no error is committed by the Adjudicating Authority in dismissing

the application for restoration vide impugned order dated 23.03.2023 because

it has been observed that the order dated 20.09.2022 has been passed on

merits much less on the ground that the Appellant has failed to cross the

threshold limit as provided because the amount which has been sought to be

resolved was Rs. 75 Lakh whereas after the amendment the threshold has

been increased to Rs. 1 Crore.

11. In any case, the appeal is also delayed by 7 days but we do not want to

make any comment upon this but this application should have been referred

to by the Appellant at the time of first hearing but the some how the other it

appears that it escaped the notice of the Counsel at that time and remained

pending.

12. In view of the aforesaid facts and circumstances, we do not find any

merit in this appeal and the same is hereby dismissed. No costs.

[Justice Rakesh Kumar Jain] Member (Judicial)

[Naresh Salecha] Member (Technical) Sheetal/Ravi