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TMI Blog2020 (9) TMI 597X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 13.02.2020 to restore the Company Petition for hearing it on merits. Now the Application having been not pressed, what could be the fate of the Company Petition! Whether the same should be left unattended in view of the order dated 13.02.2020 or should the Authority take some action for redressal of the Company Petitioner on merits. As already indicated the Company Petitioner cannot be left in the lurch for none of its dereliction. An Application for restoration of the Company Petition is sought as a matter of prudence and practice, so that disposal of Company Petition, as in the present case, is not ignored and the Petitioner is left without a remedy. Taking into consideration the principle of law discussed, the Company Petition needs to be restored to file and relegated to date of hearing i.e. 11.02.2020 for further action in the matter. While ordering so it would not be out of place to mention that the allegation of forgery and perjury raised in IA Nos. 51 and 52 of 2020 shall not be affected by the orders passed herein. - IA Nos. 41, 42, 51, 52 and 62 of 2020 in CP (IB) No. 204/7/AMR/2019 - - - Dated:- 8-6-2020 - Janab Mohammed Ajmal , Member (J) For the Appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accordingly filed IA No. 41 of 2020 seeking restoration of the present Company Petition and IA No. 42 of 2020 seeking restoration of the interim order dated 02.12.2019 of this Authority. The Respondent (CD) filed his counter to both the IAs. At the same time it also filed two applications namely, IA Nos. 51 of 2020 and 52 of 2020 alleging forgery of the signature of the Applicant (FC) in IA Nos 41 and 42 of 2020. Counters were sought and the matter was listed for hearing. On 13.03.2020 the CD filed another application vide IA No. 62 of 2020 praying to receive the forensic examination report of the signatures (of the Applicant) appearing in IA Nos. 41 and 42 of 2020 with the admitted signature of the deponent. Counter thereto have been filed. Meanwhile because of the COVID-19 Pandemic the Court proceedings remained suspended as per the order of the Principal Bench vide letter dated 15.03.2020. The suspension of Court work was extended from time to time in tune with the lockdown promulgated by the Central and State Governments. Hearing of urgent applications were permitted to be heard through video conference as per letter dated 03.05.2020 of the NCLT Principal Bench. Accordingly, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n/allegation of forgery and perjury independent of the withdrawal, the same being matters of the Tribunal's records and could not be tampered with. The learned counsel for the Corporate Debtor on the other hand submitted that the basis and genesis of the applications being shrouded in suspicion and doubt could not be permitted to be withdrawn nor can be allowed. 6. The Financial Creditor made the Applications IA Nos. 41 and 42 of 2020 soon after the order dated 21.02.2020 allowing the IA No. 37 of 2020 was passed. The Order of disposal of the present Company Petition and direction to the Financial Creditor to approach the IRP was dependent upon the order dated 12.02.2020 in the other Company Petition. That order dated 12.02.2020 was recalled consequent upon the permission to withdraw in IA No. 37 of 2020. What if, the Financial Creditor had not filed the restoration Applications in IA Nos. 41 42 of 2020! Would the Authority have sat upon the order dated 13.02.2020 thereby preventing the Financial Creditor from enforcement of its right available under section 7 of the Code. The answer to this question, in my considered opinion, would be No. The order dated 13.02.2020 was pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to be adjudicated on merits. The Hon'ble Apex Court in Robin Thapa v. Rohit Dora (Civil Appeal No. 4507 of 2019 decided on 8 July, 2019) held, Ordinarily, a litigation is based on adjudication on the merits of the contentions of the parties. Litigation should not be terminated by default, either of the plaintiff or the defendant. The cause of justice does require that as far as possible, adjudication be done on merits. 8. The Applicant thus cannot be left in the lurch without its case being decided on merits. More so, when it has not been remiss in prosecuting the present Company Petition and had no role in passing of the order dated 13.02.2020. It is well settled that there cannot be a right without a remedy (per State of Andhra Pradesh v. K. Ranganathan (1990) 4 SCC 636). The Petitioner had a right to file the Company Petition and thus was entitled get his Petition decided on merits. Which however was cut short by order dated 13.02.2020 and this Authority felt its remedy lay before the IRP. 9. After all, rules of procedure are but handmaidens of justice (Mr. Shaik Salim Haji Abdul v. Mr. Kumar others ( AIR 2006 SC 396). The Hon'ble Court in Sardar Amarjit Sin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Petition needs to be restored to file and relegated to date of hearing i.e. 11.02.2020 for further action in the matter. While ordering so it would not be out of place to mention that the allegation of forgery and perjury raised in IA Nos. 51 and 52 of 2020 shall not be affected by the orders passed herein. Further, this Authority would not be in a position to comment on the propriety or otherwise thereof. That would amount to venturing into the jurisdiction not conferred on it and encroaching upon the jurisdiction of the Criminal Court which only can take a decision in the matter in a duly constituted legal proceeding. The Respondent may approach the appropriate authority for redressal of the grievances raised in IA Nos. 51 and 52 of 2020. To act otherwise would be prejudicial and may bear upon the criminal adjudication system provided under the Companies Act, 2013 and other related laws. Materials placed in IA No. 62 of 2020 are in the nature of evidence. Those can only be appraised in a criminal trial. Acceptance thereof in the present proceeding would not only be irrelevant but redundant. Hence ordered. ORDER IA Nos. 41 42 of 2020 are dismissed as not pressed. Without ..... X X X X Extracts X X X X X X X X Extracts X X X X
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