2023 (4) TMI 925 - AT - Insolvency and Bankruptcy

Restoration of appeal - condonation of delay of 194 days in filing application - sufficient reason for delay was given or not - HELD THAT - Although, it is not necessary that the Applicant should explain every days delay but there is a huge delay of 194 days in filing of the application for condonation of delay for which the reasons, are not sufficient for the purpose of condonation of delay. Therefore, in our considered opinion, the application for condonation of delay i.e IA No. 1215 of 2023 which has though been dismissed because of dismissal of IA No. A41 of 2023 deserves to be dismissed independently. Be that as it may, even if we consider that the application i.e. IA No. A41 of 2023 is duly constituted even then there has been continues lapse on the part of the Appellant in perusing the applications before the Adjudicating Authority and for that matter there is no error committed by the Adjudicating Authority in passing the impugned order - Insofar as, the decision relied upon, in the case of RAFIQ AND ANOTHER VERSUS MUNSHILAL AND ANOTHER 1981 (4) TMI 255 - SUPREME COURT , is concerned, there is no dispute about it but each case has to be decided on its own facts and the facts of this case are such in which discretion for the purpose of restoration of the application by recalling of the order dated 27.02.2023, cannot be exercised. Appeal dismissed.

Summary

Issues involved:
The appeal against the order passed by the Adjudicating Authority for restoration of the appeal and condonation of delay in filing the appeal.

Issue 1: Restoration of the appeal
The Appellant filed an application under Section 9 of the Insolvency and Bankruptcy Code, 2016 against the Corporate Debtor for resolution of an amount. Despite multiple adjournments and non-appearance by both parties, the case was ultimately dismissed for non-prosecution. The Appellant then filed an application for recalling the dismissal order and restoration of the main petition. The Adjudicating Authority dismissed the application for restoration due to unsatisfactory reasons provided. The Appellant argued that non-appearance was due to the fault of the counsel and the Appellant's ill health. However, the Tribunal found the reasons insufficient for condonation of delay and restoration of the appeal. The Tribunal emphasized that each case must be decided based on its own facts, and in this case, restoration was not warranted.

Issue 2: Condonation of delay
The Appellant filed another application for condonation of delay in filing the application for restoration, citing ill health and alleged misconduct by the counsel. The Tribunal noted a significant delay of 194 days in filing the condonation application. Despite the reasons provided, the Tribunal deemed them insufficient for condonation of such a lengthy delay. The Tribunal emphasized that while it is not necessary for the Applicant to explain every day's delay, the reasons given in this case were not satisfactory. Consequently, the application for condonation of delay was dismissed independently of the restoration application.

Conclusion:
The Tribunal dismissed the appeal against the order of the Adjudicating Authority, emphasizing the lack of satisfactory reasons for the delay and non-appearance in pursuing the applications. The Tribunal highlighted that discretion for restoration cannot be exercised in this case, despite the Appellant's arguments regarding counsel fault and ill health. The appeal was ultimately dismissed with no costs awarded.