Petropol India Ltd. vs GRJ Distributors & Developers Pvt. Ltd.

Per: Justice Rakesh Kuma Jain:

13.02.2025: This appeal is directed against the order dated 06.12.2024 by which an application filed by the Appellant bearing New Res. A-141 of 2024 for recalling of the order 15.09.2023 which was dismissed for non-prosecution and order dated 15.06.2023 by which the main petition CP (IB) No.56/ND/2023 has also been dismissed for non-prosecution.

Briefly put, the Appellant filed an application under Section 9 of the IBC, 2016 against M/s GRJ Distributors & Developers Pvt. Ltd. (CD) before the National Company Law Tribunal, New Delhi (Tribunal). The said application was dismissed for non-prosecution on 15.06.2023 with the following order:-

“None appears for the Applicant despite repeated calls.

On 01.02.2023, no one had appeared on behalf of the Applicant. Even on the subsequent dates, there was no appearance on behalf of the Applicant.

Therefore, the matter is dismissed for non-prosecution.”

The Appellant stated to have filed New Res.A144/2023 for recalling of the order dated 15.06.2023. The Appellant did not appear to pursue the said application as well and the same was dismissed for non-appearance on 15.09.2023 with the following order:-

“This matter was passed over on the first call. No one appeared on behalf of the Applicant even on the second call. IAs dismissed for non-prosecution.”

The Appellant then filed New Rest. A 141 of 2024 for recalling of the order dated 15.06.2023 and 15.09.2023. The said application has been dismissed by the impugned order dated 06.12.2024:-

“New Rest.A-141/2024

This application has been filed by M/s. Petropol India Ltd. seeking the following prayers:-

A. Allow the present Application and recall the Order(s) dated 15.06.2023 and 15.09.2023 passed by this Hon'ble Tribunal and restore the aforesaid matter to its original number i.e. IB-56(ND)/2023.

B. Pass any other Order(s) that this Hon'ble Tribunal may deem fit in the facts and circumstances of this Present case as stated above.

We are not convinced with the reasons given by Ld. Counsel appearing for the Applicant for recalling order dated 15.06.2023 and 15.09.2023. Further, there is no explanation given by the Applicant for the delay in filing the present application.

Rest. A-141/2024 is dismissed.”

It is submitted that Counsel for the Appellant had appeared on 01.03.2023, 19.04.2023 and 11.05.2023 but the case was adjourned due to paucity of time. It is further submitted that the Appellant should not be penalized for the non-appearance of his earlier counsel.

We have heard Counsel for the appellant and perused the record.

Counsel for the Appellant has attached the orders sheet with this appeal. The first order is dated 01.02.2023 which records that none appears for the Applicant. In the interest of justice, the matter is adjourned to 01.03.2023. Thereafter, on 01.03.2023, 19.04.2023 and 11.05.2023 Counsel for the Appellant was present but due to paucity of time the matter was adjourned. However, when the matter was listed on 15.06.2023 neither the appellant nor his counsel was present, therefore, the court recorded the order that no one had appeared despite repeated calls and even on 01.02.2023 also the appellant/Applicant did not appear, therefore, the application filed by the Appellant was dismissed for non-prosecution. Thereafter, the Appellant filed the application for restoration by recalling of the order dated 15.06.2023 but the said application was also not pursued and the court recorded that the matter was passed over on the first call. No one had appeared on behalf of the Applicant even on the second call, therefore, the application was dismissed for non-prosecution. The appellant filed the application for restoration bearing 141 of 2024 and in this application instead of seeking recalling of the order dated 15.09.2023 by which the first application for restoration was dismissed the appellant made the request for recalling of the order dated 15.06.2023 as well which otherwise could not have been made but in any case the Court had recorded that the reasons given by the Appellant for non-appearance were not sufficient and convincing and no explanation has been given by the Appellant for the delay in filing the present application, therefore, Res. A no. 141 of 2024 has been dismissed.

From the perusal of the record, we are also of the considered opinion that the Appellant had been thoroughly causal and negligent in so far its appearance before the Court is concerned because, firstly, there was no appearance of the appellant on 15.06.2023 and in that order it has been recorded by the Court that the case was called repeatedly and then the application was dismissed for non-prosecution. Similarly, when the first application was filed for restoration, it was also passed over once to await the Counsel for the Appellant to argue the matter but since no one had appeared on behalf of the Appellant even on the second call, there was no alternative with the Court but to dismiss the application for non-prosecution. The order was passed on 15.09.2023 and then the application Rest. A No. 141 of 2024 was filed belatedly which was dismissed by the impugned order on 06.12.2024.

In such circumstances, we do not find any merit in the present appeal for the purpose of interference and the same is hereby dismissed. No costs.