TaxTMI 
TaxTMI 
TaxTMI 
2024 (6) TMI 89
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....) has been dismissed for nonprosecution and by order dated 22.05.2024, Restoration Application (IBC)/11(CH)/2024 filed to restore the Company Petition has been dismissed. Aggrieved by both the above orders, these two Appeal(s) have been filed. 2. Brief facts of the case necessary to be noticed for deciding the Appeal(s) are: (i) An Application under Section 94 of the IBC being CP (IB) No.89/Chd/Pb/2024 was filed by the Appellant on 27.02.2024 and physical copy of the Application was filed on 28.02.2024. The Application was first listed on 17.04.2024, however the same was adjourned on account of members of the Bar abstaining and the matter was posted on 01.05.2024. (ii) On 30.04.2024, at 08:00 PM, an email was sent by learned Counsel for the Appellant Shri Karan Gaba to the Registrar, requesting an adjournment due to personal difficulty. On 01.05.2024, the Application was called in the Court and since, no one appeared on behalf of the Applicant, the Application was dismissed for non-prosecution. On 01.05.2024, itself in the afternoon at 12:40 PM, learned Counsel for the Appellant appeared in the Court, by which time, the Application was already dismissed for non-prosecution. Th....
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....o be heard at this stage. In Section 94 Application, no proceedings has yet been taken by the Adjudicating Authority. It is submitted that Adjudicating Authority after making the above observation in paragraph-26 has further proceeded to consider the Application on merits and had made observations that Applicant has not approached the Tribunal with clean hands and is involved in Forum shopping. It is submitted that earlier proceedings, which have been noticed by the Adjudicating Authority under the SARFAESI Act, initiated by the Union Bank of India were not relevant for deciding the Restoration Application. The Application under Section 94 was not up for consideration, so as to enable the Court to examine the Application on merits. The observation of the Adjudicating Authority that no grounds have been made to restore the petition, is wholly erroneous. The Adjudicating Authority has taken too technical view in rejecting Restoration Application, which was on the ground of Counsel having not been able to appear on the ground that he went to attend the cremation of close family member. 5. The learned Counsel appearing for the Union Bank of India, opposing the submissions of the Appel....
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....ch no. 1 on 01.04.2024 and is praying for an adjournment on the ground of some unforeseen personal difficulty in my family. Regards, Adv. Karan Gaba PH/224/2020 Office at: House no. 1375, Sector-33c, Chandigarh. Phone no- 8699001158" 9. On 01.05.2024, the Application came up for hearing before the Adjudicating Authority, on which date the Adjudicating Authority passed an order, dismissing the petition for non-prosecution. The order dated 01.05.2024 is as follows: "Since, there is no representation on behalf of the petitioner despite repeated calls, therefore, the present petition stands dismissed for non-prosecution. File be consigned to the record room." 10. On 01.05.2024 itself, an Application for Restoration was filed by the Appellant. The Application was supported by affidavit of Shri Karan Gaba, learned Counsel appearing for the Appellant. The Application is a short Application, which stated following for restoration of the case: "1. That the matter was listed today I.e. 1.5.24. 2. That the matter was listed for preliminary hearing. 3. That the counsel undersigned was not able to attend the court on account of a demise in the close family of the co....
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....he point as to whether there is any reasonable ground established by the Applicant for restoration of the Application. Following are the observations made in paragraph-26 of the judgment : "26. The third point of determination is whether there is any reasonable ground established by the applicant for restoration of the petition under Section 94 of the Code. No doubt, learned senior counsel for the applicant has stated that Mr. Karan Gaba, counsel for the applicant had sent an email to the Assistant Registrar of this Bench on 30.04.2024 seeking adjournment on the ground of some unforeseen personal difficulty in his family, however, the said email is silent about the fact as to what was the unforeseen personal difficulty and the date mentioned for hearing was 01.04.2024 instead of 01.05.2024. Moreover, the matter was already listed in the cause list, therefore, when the email which was sent to the Assistant Registrar after Court hours i.e. after 8:00 p.m. on 30.04.2024, then it was not incumbent upon him to bring it to the notice of this Bench. Moreso, there were other two counsels for the applicant, namely, Mr. Kartik Goyal and Mr. Sandeep Suri but none of them appeared for making....
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.... the applicant through his counsel sent letters to the Bank as well as to the Tehsildar to face contempt proceedings against violation of the moratorium on the basis of the petition under Section 94 of the Code which is stated to be filed in the year 2023 despite the fact that no such petition under Section 94 was finally filed in the Registry of this Bench." 13. The Adjudicating Authority has come to the conclusion that the Applicant has not approached the Tribunal with clean hands and was not entitled to the relief of restoration of the petition. In paragraphs 29 and 30, following have been observed: " 29. In view of the discussion above, it is amply clear that the applicant has misused the process of law in order to avoid and stall the proceedings under the SARFAESI Act, 2002 thus, he has not approached this Tribunal with clean hands and is not entitled to the relief for restoration of the petition under Section 94 which is already dismissed for non-prosecution. 30. As a sequel to the reasons recorded hereinbefore, we find no reasonable ground to restore the present petition bearing CP (IB) No. 89/Chd/Pb/2024 and consequently this restoration application i.e. RST. A (IBC)....
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....t: "1. Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. 3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical....
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....r an adjournment. 16. Although, we are of the view that sending email by the Appellant does not oblige the Court to adjourn the matter when date is fixed, there had to be a proper request to the Court, when case is called or an appropriate Application for adjournment is filed. No one appeared on 01.05.2024, hence, the Adjudicating Authority dismissed the Application for nonprosecution. It is also stated in the Application that the Counsel reached the Court at 12:40 PM. and a request was made to the Bench also, but since the order was passed in the open Court, the Appellant was advised to move an Application for restoration. Then on the same day, the Application for restoration was filed. It is relevant to notice that Application is supported by an affidavit of the Counsel and there is no reason to disbelieve the cause given in the Application for non-appearance. The Adjudicating Authority in paragraph-26 has observed that no specific relationship of the deceased has been mentioned with Shri Karan Gaba and further, no death certificate has been placed on record. The question to be considered was, as to whether there was any sufficient case for nonappearance on 01.05.2024. It was no....
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....e justice between the parties particularly when no negligence or inaction is imputable to the erring party. Sufficient cause for the purpose of Order 9 Rule 13 has to be construed as an elastic expression for which no hard and fast guidelines can be prescribed. The courts have a wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. The "sufficient cause" for nonappearance refers to the date on which the absence was made a ground for proceeding ex parte and cannot be stretched to rely upon other circumstances anterior in time. If "sufficient cause" is made out for non-appearance of the defendant on the date fixed for hearing when ex parte proceedings were initiated against him, he cannot be penalised for his previous negligence which had been overlooked and thereby condoned earlier. In a case where the defendant approaches the court immediately and within the statutory time specified, the discretion is normally exercised in his favour, provided the absence was not mala fide or intentional. For the absence of a party in the case the other side can be compensated by adequate costs and the lis decided on merits. " 17. The ....