9911796707
TMI Blog2017 (3) TMI 1702X X X X Extracts X X X X X X X X Extracts X X X X ..... present from the petitioner side, this Bench passed an order stating that "none present on behalf of Applicant", accordingly listed this matter for hearing on the next day 19.1.2017 with a direction that in the event the Applicant remained absent on the next day, CP would be dismissed for default. When the matter came up for hearing on the following day, again the Petitioner remained absent whereby this Bench dismissed the Petition for default on 19.1.2017. 3. Since this Petition was dismissed for default on 19.1.2017, now this Petitioner has filed this Recall and Restoration Application on 24.2.2017 stating that at the time of filing Company Petition the Court Clerk orally informed the concerned Advocate Clerk that date of hearing would b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion either to the Applicant or the Advocate, the Applicant filed this Application for recalling and restoring the Company Petition. 6. Today, the Counsel appearing on behalf of the Petitioner submits that this Company petition may be restored by invoking Rule 48(2) of NCLT Rules on the ground that the procedural aspects in relation to I & B proceedings have to be considered in accordance with NCLT Rules in view of the amendment taken out to section 424 of the Companies Act, 2013. The Applicant/Petitioner Counsel submits that since procedure before the Tribunal and the Appellate Tribunal being governed by Sec. 424 and Rules prescribed thereto, dismissal of this CP has to be construed as dismissal u/r. 48(1) of NCLT Rules and when this dism ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er nor its Counsel present. Therefore, this arguments saying that the Clerk making inquiries and the Registry of NCLT Mumbai not sending communication to the applicant or its counsel will not be relevant or sufficient cause to the counsel failed to appear for the hearing. 9. Ever since, Insolvency and Bankruptcy Code has been notified, this Bench has been taking up the matters and passing orders as and when the matter has come up before this Bench unless and until parties seek adjournment either on the ground of short of compliance or for making further submissions in relation to this case. That adjournment is also hardly for one or two days because this Code mandates this Bench to pass orders under sections 7, 9 and 10 of the Code within ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... doubtedly beyond 14 days of the life given in the statute. In view of this predicament, this Bench is doubtful as to whether Rule 48(2) is to apply for restoring the CP dismissed for default. If it is restored, it will become repugnant to the time period given under the Code. If it is not restored, then it will be non-application of the restoration power given to this Bench under Rule 48(2) of NCLT Rules. Since the former action i.e. restoration of this Company Petition being repugnant to the Code itself, this bench is of the view that the procedure always being subservient to the substantive law, as quoted by the Applicant Counsel, this Bench has to go by the Sections of Law rather than the procedural Rules mentioned under Rule 48(2) of NC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... admitting or dismissing it. I & B petition shall be brought to logical end in 14 days, unless and until it is extended by this Bench for the reasons mentioned therein. Once the proceeding is initiated under any of the three Sections of the Code mentioned above, it has to be completed within 14 days, since the life to the Petition u/s. 7, 9 & 10 remains for 14 days from the date of filing, this Bench cannot bring forth life to the said petition by restoration when its life itself is designed for fourteen days. If fresh life is given to it in the name of restoration after those 14 days, it will be in violation of the lifetime of 14 days given u/s. 7(4), 9(5) & 10(4) of the Code. 16. In view of the reasons mentioned above, this Application i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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