TaxTMI 
TaxTMI 
TaxTMI 
2017 (3) TMI 1702
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....resent from the petitioner side, this Bench passed an order stating that "none present on behalf of Applicant", accordingly listed this matter for hearing on the next day 19.1.2017 with a direction that in the event the Applicant remained absent on the next day, CP would be dismissed for default. When the matter came up for hearing on the following day, again the Petitioner remained absent whereby this Bench dismissed the Petition for default on 19.1.2017. 3. Since this Petition was dismissed for default on 19.1.2017, now this Petitioner has filed this Recall and Restoration Application on 24.2.2017 stating that at the time of filing Company Petition the Court Clerk orally informed the concerned Advocate Clerk that date of hearing would be....
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....ion either to the Applicant or the Advocate, the Applicant filed this Application for recalling and restoring the Company Petition. 6. Today, the Counsel appearing on behalf of the Petitioner submits that this Company petition may be restored by invoking Rule 48(2) of NCLT Rules on the ground that the procedural aspects in relation to I & B proceedings have to be considered in accordance with NCLT Rules in view of the amendment taken out to section 424 of the Companies Act, 2013. The Applicant/Petitioner Counsel submits that since procedure before the Tribunal and the Appellate Tribunal being governed by Sec. 424 and Rules prescribed thereto, dismissal of this CP has to be construed as dismissal u/r. 48(1) of NCLT Rules and when this dismi....
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....r nor its Counsel present. Therefore, this arguments saying that the Clerk making inquiries and the Registry of NCLT Mumbai not sending communication to the applicant or its counsel will not be relevant or sufficient cause to the counsel failed to appear for the hearing. 9. Ever since, Insolvency and Bankruptcy Code has been notified, this Bench has been taking up the matters and passing orders as and when the matter has come up before this Bench unless and until parties seek adjournment either on the ground of short of compliance or for making further submissions in relation to this case. That adjournment is also hardly for one or two days because this Code mandates this Bench to pass orders under sections 7, 9 and 10 of the Code within 1....
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....oubtedly beyond 14 days of the life given in the statute. In view of this predicament, this Bench is doubtful as to whether Rule 48(2) is to apply for restoring the CP dismissed for default. If it is restored, it will become repugnant to the time period given under the Code. If it is not restored, then it will be non-application of the restoration power given to this Bench under Rule 48(2) of NCLT Rules. Since the former action i.e. restoration of this Company Petition being repugnant to the Code itself, this bench is of the view that the procedure always being subservient to the substantive law, as quoted by the Applicant Counsel, this Bench has to go by the Sections of Law rather than the procedural Rules mentioned under Rule 48(2) of NCL....