TaxTMI 
TaxTMI 
TaxTMI 
2025 (12) TMI 1675
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....Smartpaddle Technology Pvt Ltd Vs OTIS Textiles Pvt Ltd, was dismissed by the Tribunal by an order passed on 17.06.2025 on the ground of non-compliance of the earlier directions given by the Learned Tribunal and non-appearance of the Appellant on the said date. Seeking its recall/restoration, the Appellant had filed a Restoration Application, being Restoration Application (IBC)/9/2025. It is this application, which has been rejected by the impugned order of 30.07.2025, which is now the subject matter under challenge in the instant Company Appeal. 2. The Company Appeal is accompanied with a Condone Delay Application, as well as the application seeking condonation of delay in refiling. If we determine the period of limitation from the date....
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....tion of the Company Petition. When the matter was taken up on 17.06.2025, Learned Tribunal recorded in the order that despite the grant of several opportunities the Appellant did not produce the required documents on record so as to establish actual delivery of goods and he did not even appear in person or through counsel and came to the conclusion that the Appellant was not interested in pursuing the proceedings of the Company Petition being CP(IB)/42/9/AMR/2024 and on that premise the Tribunal has dismissed the Company Petition itself by the order dated 17.06.2025 on the grounds of being defective and not maintainable in addition to the grounds of want of prosecution due to the absence of the Appellant in the proceedings. 5. The settle....
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....Explanation thereto. On that short ground alone the appeal is allowed the impugned order is set aside." 6. The Appellant had filed the recall application praying that the order of 17.06.2025, dismissing the Company Petition may be recalled. The said Restoration Application was numbered as Restoration Application (IBC)/9/2025, and it was dismissed by the impugned order dated 30.07.2025, observing thereof that since the initial order, which was sought to be recalled, i.e., 17.06.2025, was passed, dismissing the Company Petition on grounds of being defective and not maintainable and not solely on grounds of non-prosecution, no Restoration Application would be maintainable because that would amount to reviewing its own order of 17.06.2025, w....
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....here the party to the proceedings is not present on the date when the hearing is held, the Tribunal or the Courts thereof seized with the proceedings should refrain itself from dismissing the Company Petition on merits. Propriety demands that the Tribunal, at the most could have dismissed the Company Petition for want of prosecution. Having not done so, the order itself of 17.06.2025, on the face of it, will fall to be within the ambit of Rule 11 of NCLT Rules to be recalled on an application to be preferred by the Appellant, which the Appellant did by filing Restoration Application (IBC)/9/2025, seeking recall of the order of 17.06.2025 and praying that the Company Petition may be heard on its own merits. The said application has been dism....
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....nce of the Appellant or his counsel. 9. Thus, the application preferred under Rule 11 of the NCLT Rules for seeking recall of the order dated 17.06.2025, would be very well maintainable and cannot be treated as to be review of the order of 17.06.2025 because the said order was not an adjudication on merits, but rather based on procedural flaws because of procedural flaw of the Learned Tribunal. Besides that, in any proceedings, howsoever a party to the proceedings might have derelict in compliance with the procedural orders passed by the Tribunals or the Courts during the proceedings, that itself should not be taken as to be the reason for not to interfere in the proceedings owing to the past conduct of the party to the proceedings who w....
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.... against the petitioner, and, therefore, I refrain from interfering with the fact so found. But the fact remains that while considering the question, the revisional court has dealt with the past conduct of defendant No. 11. It is established principle of law that while considering the question of grant of adjournment or recalling of an order, the past conduct is immaterial. The court has to look into the merit of the case confining to the date of the order sought to be recalled was passed. The court has to look out whether sufficient ground has been made out for the default on the very date or not. Looking into the past conduct would be an extraneous consideration which the court should not go into. In that view of the matter, taking into a....