TaxTMI 
TaxTMI 
2025 (10) TMI 124
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....f 06.06.2022 dismissing the Section 9 petition filed by the Appellant-R. Mall Developers Pvt. Ltd. Aggrieved by the impugned order dismissing their Restoration Application No. 225 of 2023 as well as the delay condonation application No 3156 of 2023, the present appeal has been preferred by the Appellant. 2. Making submissions on behalf of the Appellant, the Ld. Counsel for the Appellant gave a brief factual background leading to the present Appeal. It was submitted that the Company Petition under Section 9 filed by them had been dismissed on account of non-appearance of the designated counsel before the Adjudicating Authority. It was emphatically asserted that since the Adjudicating Authority enjoyed sufficient powers to restore the dismissed Section 9 Company Petition No. 1552 of 2017, they filed a Restoration Application('RA') No. 17 of 2022. However, as this RA got dismissed for non-prosecution due to absence of the legal counsel, they filed the second Restoration Application vide No.225 of 2023. The RA No. 225 of 2023 filed for recalling the dismissal of Restoration Application No. 17 of 2022 was also dismissed on grounds of non-prosecution. Adverting attention to Rule 48 of....
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....tify the institution of the second RA. The negligence is manifested by the fact that the Appellant not only filed the second RA in a belated manner but even filed the Delay Condonation Application in respect of the second RA after a huge delay of 160 days and that too after being pointed out to do so. The Delay Condonation Application also did not lay out any sufficient or credible cause for delay. The repeated absence of the Appellant and his counsel from the court not only points out negligence and lack of bonafide intent on part of the Appellant but a calculated and strategic ploy undertaken to harass the Respondent. The Appellant has now tried to invoke Section 61 of the IBC to re- agitate the same issue of non-appearance before the Adjudicating Authority by putting the entire blame on their former legal counsel. This was not a case of isolated, inadvertent error on part of the Appellant but a conduct marked by chronic abuse of procedure, indulgence in delay tactics and wilful absence from court proceedings. The right to be heard by invoking the principles of natural justice cannot be claimed by a party who has repeatedly failed to act with diligence in prosecuting their matter....
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....ting Authority, the relevant excerpts of which are as extracted below: "9. We have considered the submissions on both the sides and perused the record. The conduct of the applicant is very clear that the applicant as well as its counsel had full knowledge of the section 9 petition as well as the restoration application but were not diligently prosecuting the petition and the application. When it was announced in the open court that the matter stood transferred to Court No. 3 there was no occasion for the petitioner not to be aware of the same. Thereafter even the restoration application was not diligently prosecuted and its fate was same as that of the main petition. 10. As far as the plea of the mistake on the part of the advocate is concerned, the leniency can be considered only in the cases where the Petitioner/applicant may be a non-commercial entity or an illiterate person or residing in a remote area and not aware of the proceedings before any court or tribunal. In the present case, we note that petitioner is a commercial entity by the name of R Mall Developers Pvt. Ltd. who are aware of the proceedings and are expected to be vigilant in prosecuting their ca....
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....stand in dismissing the second RA on the ground that the Appellant being a commercial entity was expected to act with greater diligence and cannot be seen to absolve themselves of their negligence by shifting the entire burden on the shoulder of their counsel. 8. Per contra, it is the contention of the Respondent that it is a settled position that it is the unequivocal duty of a litigant to remain vigilant with respect to asserting their rights and protecting their own cause. In the present case not only was the Company Petition No. 1552 rejected for non-prosecution but even the first RA No. 17 of 2022 had been rejected for non-prosecution and the second RA also dismissed for non-prosecution. Even the filing of the second RA was not done within the given time framework but was done after a delay of nearly 160 days. When the Appellant had themselves instituted the main Section 9 Company Petition, they were obligated to pursue the matter in serious earnest which has not happened. A genuine litigant is not one who endeavours to cover up their own inaction by shifting the entire blame on to their counsel. It was submitted that the Appellant is trying to garner sympathy by projecting....
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....nce the pleading stood completed in the matter, the matter would be heard on 06.06.2022 failing which the petition was to be dismissed. Hence, when the Appellant again did not appear on the scheduled date of hearing, the Adjudicating Authority proceeded to dismiss the Section 9 Company petition on 06.06.2022. 10. Thereafter, the Appellant filed RA No. 17 of 2022 which was fixed for hearing by the Adjudicating Authority but the Appellant again failed to appear before the Adjudicating Authority leading to dismissal of the RA on 15.11.2022. The relevant order is as extracted below: 15.11.2022 ORDER R.A. 17/2022 The above application is filed by the Applicant for restoration of the main company petition which was dismissed for non-prosecution on 06.06.2022. None appeared for the Applicant nor the physical copy of the above application is available with this Bench. It seems the Applicant is not interested in prosecuting the above application. Hence, the above Application is dismissed confirming the earlier dismissal order. 11. Consequent upon the dismissal of the first RA, the dismissal of the Section 9 Company petition stood confirmed. The dismiss....
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.... and where the litigant has acted with promptness and good faith in seeking restoration. The Appellant cannot claim unfettered right of restoration without adequate reasons. In the present case, apart from shifting the entire blame on the erstwhile counsel, no other genuine grounds have been cited to justify their slackness in pursuing the ongoing court proceedings leading up to the institution of the second RA. Neither has sufficient or credible cause put on record to explain why the second RA was filed with delay. The Appellant not only belatedly the filing of the second RA but also belatedly file the Condonation of Delay Application. Further, even when the second RA came up for hearing they failed to appear when it was listed for hearing. The litigant cannot be permitted to shift the entire blame on to their counsel. No material has been placed on record to show that any corrective action had been taken by the Appellant to ensure appearance by the counsel or to substitute the counsel for his errant behaviour. We are inclined to agree with the Adjudicating Authority that a commercial litigant who has voluntarily approached the Adjudicating Authority to institute a Section 9 proce....