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2021 (4) TMI 1073 - Tri - Insolvency and BankruptcySeeking to condone the delay of 379 days in filing an Application for restoration of the Petition - HELD THAT - This Application has been filed and Learned Counsel for the Applicant was heard. Learned Counsel for the Applicant repeatedly insists that on the fault of the erstwhile Counsel, the Applicant should not be penalised as the non appearance of the erstwhile Counsel for the Applicant had made this Tribunal to dismiss the Petition for default. The Applicant was genuinely misled in view of non appearance of the representative of the Applicant before this Tribunal which had left to the dismissal of the Application for this cause. The same has also been compounded further by the uploading of an order on 02.11.2018 which has been as rightly pointed out by Learned Counsel for the Applicant had misled the Applicant as if the Application is still pending on the file of this Tribunal and even though the same has been disposed of as dismissed for default on 08.10.2018 itself and thus we find a merit in the submissions made by the Applicant. The delay of 379 days in filing the Application seeking for restoration of the Petition stands condoned.
Issues:
Delay in filing an Application for restoration of a Petition under the Insolvency & Bankruptcy Code, 2016. Analysis: The judgment by the National Company Law Tribunal, Chennai Bench, involved an Application seeking to condone a delay of 379 days in filing for restoration of a Petition under the Insolvency & Bankruptcy Code, 2016. The Applicant, formerly known as M/s. Maheswari Brothers Coal Private Limited, had filed a Petition under Section 9 of the IBC, 2016, numbered as CP/661/(IB)/CB/2018. An order was passed on 05.06.2018, restraining the Respondent from dealing with the assets of the Corporate Debtor. Subsequently, a settlement proposal was exchanged between the parties, with a payment made by the Respondent. However, due to miscommunication and the non-appearance of the Applicant's representative, the Petition was dismissed for default on 08.10.2018, unbeknownst to the Applicant. The Application detailed the efforts made by the Applicant to locate the case bundle, which had been misplaced, leading to the dismissal of the Petition. The Applicant contended that the dismissal was a result of the former Counsel's non-appearance and should not penalize the Applicant. The Applicant's Counsel cited relevant case laws emphasizing the need for a liberal construction of 'sufficient cause' under Section 5 of the Limitation Act, highlighting the importance of substantial justice and a satisfactory explanation for delay. After considering the submissions and circumstances, the Tribunal found merit in the Applicant's contentions. The Tribunal noted that the Applicant was genuinely misled by the non-appearance of its representative and the subsequent uploading of an order on 02.11.2018, creating confusion about the status of the Application. Consequently, the Tribunal condoned the delay of 379 days in filing the Application for restoration of the Petition, allowing the matter to proceed.
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