Formica Laminates (India) Pvt. Ltd vs Pe El Asia Trading Pvt. Ltd

Ashutosh Chandra, Member (T)

I.A. No. 228 of 2020 in C.P. (IB) No. 346/BB/2019 is filed by M/s. Formica Laminates (India) Private Limited (hereinafter referred to as 'Applicant/ Operational Creditor') under Rule 48(2) read with Rule 11 and Rule 34 of the National Company Law Tribunal Rules, 2016 by inter alia seeking to restore the Company Application in C.P. (IB) No. 346/BB/2019 by recalling the Order of Tribunal dated 05.11.2019 and condone the delay of 110 days in filing the present application, etc.

The CP was listed before the Bench on 18.10.2019 'for non-compliance of office objections' and on that day neither the Petitioner nor the Counsel for the Petitioner appeared before the Tribunal. Since the case was not being prosecuted diligently, the Registry was directed to post the case under the caption 'for dismissal' on 05.11.2019 and that day also neither the Petitioner nor the Counsel for the Petitioner appeared before the Tribunal, and hence the same was dismissed for default for non-compliance of office objections.

It is stated that the Applicant herein have filed the Company Petition bearing C.P. (IB) No. 346/BB/2019 on 04.09.2019 U/s 9 of the IBC, 2016 R/w Rule 6 of the l&B (Application to Adjudicating Authority) Rules, 2016 seeking for initiation of the Corporate Insolvency Resolution Process in respect of the Corporate Debtor namely M/s. PE EL Asia Trading Private Limited for defaulting an amount of Rs. 1,24,03,689/- (Rupees One Crore Twenty-Four Lakh Three Thousand Six Hundred Eighty Nine only) through 30 invoices as issued from time to time and Rs. 68,67,940/- as interest.

It is further stated that the non-appearance of the Applicant was neither intentional nor wilful. The Applicant was under the bona fide belief that the present matter is being listed for hearing and was not aware of the non- appearance of the Advocate and he came to know only after receiving this Tribunal Order dated 05.11.2019. The Advocate on record was unavailable owing to health grounds and was under belief that the matter would be taken care by other associate in the firm, who quit the firm without a notice and proper handover. Since the case has been dismissed for default, the Counsel through the instant Application has urged that the Order dated 05.11.2019 be recalled and restore the said Company Petition into original stage.

Heard Mr. Anuraag Mehta, learned Counsel for the Applicant, through Video Conference. We have considered the reasons given above by the Applicant for non- appearance when the case was fixed twice before being dismissed vide our order dated 05.11.2019. We are of the view that the Applicant had bonafide reasons that prevented him/his Counsel from appearing and prosecuting the case filed in CP (IB) No. 346/BB/2019. It would meet the ends of justice if the impugned order is recalled and the proceedings are taken up afresh on merits by giving fresh opportunity to both the Petitioner and the Respondent in the said CP. The prayer deserves to be allowed, including the prayer for condonation of delay in filing the Application under consideration.

In view of the above, I .A. No. 228 of 2020 in C.P. (IB) No. 346/BB/2019 is allowed by condoning the delay in filing the same and as per the following order:

(a) The order dated 05.11.2019 in CP (IB) No. 346/BB/2019 is set aside and the Company Petition is restored, subject to payment of cost of Rs. 10,000/- (Rupees Ten Thousand Only), payable to "The Bengaluru Professionals Benevolent Fund", Kotak Mahindra Bank, High Court of Karnataka, High Court Buildings, Dr. Ambedkar Veedhi, Bengaluru-560001, [A/c No. 237010001731, IFSC: KKBK0008085], and submission of proof of payment, before the next date of hearing.

(b) Post the CP for admission on 31st July, 2020.