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TMI Blog2022 (7) TMI 147X X X X Extracts X X X X X X X X Extracts X X X X ..... ter. It is significant for this Appellate Tribunal to point out that the Restoration Application is completely mentioned the reason as to why the adjournment was requested on 24.09.2021 and what for, the proceedings before the Adjudicating Authority were not conducted by the Appellant/Applicant on earlier hearings. The Respondent projects a plea that the total claim of the Appellant/Applicant is less than Rs.1 Crore, threshold limit and the I B Code, 2016, is utilised as a Money Recovery Fora, by the Applicant/Appellant which is impermissible in law - It is to be pointed out that the plea of Restoration/Condonation of Delay is not a matter of right. The term Sufficient Cause is a circumstance to be taken into account in exercising discretion by a Tribunal/Court of Law. No wonder, the Tribunal cannot determine the aspect of Sufficiency of Cause dehors the facts pleaded and made out by a Party. Where Bonafides are absent, there can be no Sufficient Cause for allowing the Restoration Application by the Tribunal. In Law, Sufficient Cause is not different from Good Cause. A Party who is not vigilant may not get a second opportunity. Mere absence of the Learned Counsel or a Pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted by Mr. Ramana Kumar, Advocate through video conferencing platform. This Application is filed for restoration of IBA/358/2020 which was listed for hearing on 01.02.2021. The Learned Counsel on record was not present on that date. Again, the matter was listed on 08.02.2021. Vide order dated 08.02.2021, the Application was dismissed for non-prosecution. Thereafter this Application was filed on 07.04.2021. Today, the Learned Counsel for the Applicant seeks further time for argument. We do not find any merit in this Application. There is no reason also stated for non appearance on 08.02.2021 by the Applicant. Today, Learned Counsel for the Applicant is unable to submit the facts and circumstances of the case. There is no merit in this case. and ultimately, dismissed the Application, but without costs. Appellant s Submissions: 3. Challenging the `impugned order dated 02.11.2021 in Rest. Appln. / IBC/3/CHE/2021 in IBA/358/2020 passed by the NCLT, Division Bench I, Chennai, the Leaned Counsel for the Appellant/Operational Creditor contents that the Appellant is an `Operational Creditor and the amount due is Rs.13,49,016/-. In this connection, it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... record and in fact, the absence of the `Appellant/Petitioner on the date of hearing on 18.02.2021 before the `Adjudicating Authority was because of the reason that the Appellant s Learned Counsel on record could not attend the hearing because of connectivity issues. 8. The Learned Counsel for the Appellant adverts to the fact that the Rest. Appln. / IBC/3/CHE/2021 in IBA/358/2020 was listed before the `Adjudicating Authority on 02.11.2021 (vide Ordinary List, Serial No. 305) and the matter reached at about 2.30 P.M. But the Learned Counsel for the `Appellant/Operational Creditor was unable to appear because he had a physical hearing before the Madras High Court and the matter was represented by the Junior Counsel who prayed for time for `arguments but the Rest. Appln. / IBC/3/CHE/2021 in IBA/358/2020 came to be dismissed, on the ground that `no reason was assigned by the Appellant/Applicant for its non appearance, on 18.02.2021 . 9. The grievance of the Appellant before this `Tribunal is that the `impugned order dated 02.11.2021, passed by the `Adjudicating Authority in Rest. Appln. / IBC/3/CHE/2021 in IBA/358/2020 is an erroneous one and the `Adjudicating Authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parties is to select his advocate, brief him, pay the fees demanded by him and then trust the learned advocate to do the rest of the things. The party may be a villager or may belong to a rural area and may have no knowledge of the court's procedure. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of the hearing of the appeal, the personal appearance of the party is not only not required but hardly useful. Therefore, the party having done everything in his power to effectively participate in the proceedings can rest assured that he has neither to go to the High Court to inquire as to what is happening in the High Court with regard to his appeal nor is he to act as a watchdog of the advocate that the latter appears in the matter when it is listed. It is no part of his job. Mr. A.K. Sanghi stated that a practice has grown up in the High Court of Allahabad amongst the lawyers that they remain absent when they do not like a particular Bench. Maybe he is better informed on this matter. Ignorance in this behalf is our bliss. Even if we do not put our seal of imprimatur on the alleged practice by dismissing t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9, in the matter of Mr. G.R.K. Reddy V ICICI Bank Ltd. Ors. (vide Comp. App (AT) Ins. No. 618 of 2019, wherein at paragraphs 6 to 12, it is observed as under: 6. Having heard the learned counsel for the parties and taking into consideration the fact that the `Terms of Settlement proposed by the `Promoters under Section 12A has been accepted by majority voting of 95.96% of the `Committee of Creditors , we are not deciding the appeal on merit but allow the prayer made by `ICICI Bank Limited (Applicant of Section 7 of the I B Code) to withdraw the petition filed under Section 7 of the I B Code. 7. In the result, the impugned order dated 28th May, 2019 for initiating the `Corporate Insolvency Resolution Process is set aside along with consequential steps taken. The application under Section 7 filed by the `ICICI Bank is disposed of as withdrawn. 8. The `Corporate Debtor is released from all rigour of law. The `Resolution Professional will handover the assets and documents to the `Corporate Debtor through `Promoter . 9. The `Corporate Debtor is directed to pay the stakeholders/creditors in terms of settlement reached under Section 12A within the period a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation cannot form the basis of a `valid and legal claim , in terms of the I B Code, 2016. 20. Advancing his argument, the Learned Counsel for the Respondent/Corporate Debtor points out that as per the `Demand Notice , the dues where from 2011 itself and extended up to 2018 and that the claims raised were improper to the extent that the period of limitation applies wherein a number of invoices were time barred, for which, no claims can be raised. In fact, the case was adjourned to 18.02.2021 for `hearing and disposal and that the `Applicant/Appellant had failed to appear for the purpose of the `Adjudication of the case . The matter came to be `dismissed for non appearance, among other faults . 21. The Learned Counsel for the Respondent brings it to the notice of this `Tribunal a Restoration Application was filed on 07.04.2021 and that the case was posted for hearing on 21.04.2021, on which date, the Learned Counsel for the Appellant/Applicant appeared, but failed to make any arguments. However, on behalf of the Respondent side, the argument was made that the Application was defective on `numerous grounds and that the Respondent was granted time to file counter. The case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled. Let the matter be posted on 18.02.2021 for the enquiry. Non-apperance of the Petitioner on the said date will result in dismissal of the Petition. 28. It comes to be known that on 18.02.2021, the `Applicant/Appellant because of his failure to appear before the `Adjudicating Authority , the case was dismissed for `Non-Prosecution . On 07.04.2021, the Restoration Application was filed and that the case was posted for hearing on 21.04.2021, where a Counsel of the `Applicant/Appellant appeared and failed to address any argument. But the Respondent made the argument that the `Application filed was defective on various grounds and time was granted to the Respondent to file counter. 29. The matter / case was adjourned to 16.07.2021 for filing a `Better Affidavit , because there were defects in the `Application such as the (i) Date of Dismissal and the C.P.No. was not mentioned and a copy of the `Better Affidavit was instructed by the `Adjudicating Authority to be served to the Respondents, after clearing all defects. 30. The case was adjourned from 27.08.2021 to 24.09.2021 at the request of the `Applicant/Appellant and the matter was adjourned to a subsequent date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.04.2019 was addressed to the `Respondent demanding a sum of Rs.13,49,016/-, being the sum which was the `defaulted one . Furthermore, the `Debt was stated to be pending from the Financial Year 2011-2012 and it is continuing one, according to the `Applicant/Appellant . 36. The Respondent through its `Reply dated 12.04.2019 had inter alia stated that all the Invoices were legally raised by the `Appellant was fully paid and further that none of the Invoices bear the `Signature of the Appellant s side . That apart, on behalf of the Respondent a stand is taken that there were no due amounts to be paid. Besides this, the Invoices attached with the `Notice of the `Appellant dated 02.04.2019 are disputed by the `Respondent , as they are false. 37. Be that as it may, on a careful consideration of the arguments advanced on either side, this `Tribunal taking note of the fact that the IBA/358/2020 (filed by the `Appellant/Applicant was dismissed by the `Adjudicating Authority on 18.02.2021 for the absence of the Petitioner (although the Learned Counsel for the Corporate Debtor Mr. Ramana Kumar was present through Video Conferencing), that the Restoration Application (IBC/3/CHE/ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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