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TMI Blog2024 (6) TMI 89X X X X Extracts X X X X X X X X Extracts X X X X ..... that Applicant has not approached the Tribunal with clean hands and rather he is involved in Forum shopping, as was found in paragraph 27. It is relevant to notice that Application under Section 94, was not up for consideration and the consideration on merits of the Application was uncalled for. Observation of the Adjudicating Authority that the Appellant has not approached the Tribunal with clean hands and is involved in Forum shopping, were the observations, which were made prematurely. It was open for the Adjudicating Authority to consider all the above issues when Application under Section 94 comes for consideration. Sufficient cause for non-appearance or not - HELD THAT:- Hon ble Supreme Court in in G.P. Srivastava vs. R.K. Raizada and Ors. [ 2000 (3) TMI 1126 - SUPREME COURT ], observed that while considering the question of sufficient cause for non-appearance, other circumstances anterior in time cannot be relied - Applicants were unable to show their bonafides and establish sufficient cause. It was further noticed in the facts of the said case that a defendant cannot be penalized and made to suffer the rigours of litigation over decades. The judgment of the above case was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ii) On 30.04.2024, at 08:00 PM, an email was sent by learned Counsel for the Appellant Shri Karan Gaba to the Registrar, requesting an adjournment due to personal difficulty. On 01.05.2024, the Application was called in the Court and since, no one appeared on behalf of the Applicant, the Application was dismissed for non-prosecution. On 01.05.2024, itself in the afternoon at 12:40 PM, learned Counsel for the Appellant appeared in the Court, by which time, the Application was already dismissed for non-prosecution. The Appellant was advised to file a Restoration Application. On 01.05.2024 itself, an Application for restoration was filed by the Counsel for the Appellant, where it was stated there being bereavement in the close family of the Counsel, the Counsel for the Appellant could not appear on 01.05.2024. (iii) The Application was taken up on 08.05.2024 by the Adjudicating Authority, on which date, learned Counsel for the Appellant as well as learned Counsel for Union Bank of India (Financial Creditor) were present. The Financial Creditor appeared and prayed for time to file reply, the same was granted and the matter was adjourned to 30.05.2024. (iv) The Union Bank of India has a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o enable the Court to examine the Application on merits. The observation of the Adjudicating Authority that no grounds have been made to restore the petition, is wholly erroneous. The Adjudicating Authority has taken too technical view in rejecting Restoration Application, which was on the ground of Counsel having not been able to appear on the ground that he went to attend the cremation of close family member. 5. The learned Counsel appearing for the Union Bank of India, opposing the submissions of the Appellant, submits that the Appellant has earlier filed Section 94 Application on 02.06.2023, in which Application, defects were not cured and the same was withdrawn. It is submitted that Application filed by the Appellant on 27.02.2024 was to derail the proceedings initiated by the Union Bank of India under the SARFAESI Act to take the possession of the secured assets, which have already been sold and only the possession has to be undertaken by the Bank. After filing the Application on 27.02.2024, the Appellant has been representing the Bank that moratorium has commenced by filing the Application and Bank cannot take any proceedings. It is submitted that the Appellant is threatenin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n for Restoration was filed by the Appellant. The Application was supported by affidavit of Shri Karan Gaba, learned Counsel appearing for the Appellant. The Application is a short Application, which stated following for restoration of the case: 1. That the matter was listed today I.e. 1.5.24. 2. That the matter was listed for preliminary hearing. 3. That the counsel undersigned was not able to attend the court on account of a demise in the close family of the counsel. 4. That the counsel had sent an email dated 30.4.24 addressed to the Respected Registrar, praying for an adjournment in the matter on account of the same with a request to place the same before the Hon ble Court. That the email is reproduced: From: Karan Gaba [email protected] Date: Tue, 30 Apr 2024 at 20:00 Subject: Request for an adjournment. To: [email protected] Respected sir/madam, That i Adv. Karan Gaba having PH/224/2020 is a counsel in case no. CP (IB) No. 89/chd/pb/2024 titled as Ashish Mohan Gupta (PG) is listed for Admission of the case at item no. 3 before Bench no. 1 on 01 .04.2024 and is praying for an adjournment on the ground of some unforeseen personal difficulty in my family. Regards, Ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter was already listed in the cause list, therefore, when the email which was sent to the Assistant Registrar after Court hours i.e. after 8:00 p.m. on 30.04.2024, then it was not incumbent upon him to bring it to the notice of this Bench. Moreso, there were other two counsels for the applicant, namely, Mr. Kartik Goyal and Mr. Sandeep Suri but none of them appeared for making a request regarding the unforeseen personal difficulty in the family of Mr. Karan Gaba, Advocate. Apart, no specific relationship of the deceased (uncle) has been mentioned with Mr. Karan Gaba, Advocate and no death certificate has been placed on record. Thus, the Authorities (supra) RAFIQ and Another and Komal Gupta relied upon by the Ld. counsel for applicant are not distinguishable. 12. Further, it is relevant to notice that Adjudicating Authority proceeded to make observations that Applicant has not approached the Tribunal with clean hands rather he has involved in Forum shopping. The Adjudicating Authority has noticed the litigations in paragraph-27 of the judgment. In paragraph 28, the Adjudicating Authority again noticed the details of filing of writ petitions by the Appellant before the High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal with clean hands and is not entitled to the relief for restoration of the petition under Section 94 which is already dismissed for non-prosecution. 30. As a sequel to the reasons recorded hereinbefore, we find no reasonable ground to restore the present petition bearing CP (IB) No. 89/Chd/Pb/2024 and consequently this restoration application i.e. RST. A (IBC)/11(CH)/2024 is dismissed, however, we refrain ourselves from imposing any cost upon the applicant. 14. The submission, which has been pressed by the learned Counsel for the Appellant is that while considering the Application for restoration, the Adjudicating Authority ought not to have entered into the merits of the Application, since it was the Restoration Application, which was listed before the Adjudicating Authority and not the Application under Section 94. On 20.05.2024, when the Application was heard, it was only the Restoration Application filed by the Appellant to recall the order dated 01.05.2024 dismissing the Application for non-prosecution. When Application is dismissed for non-prosecution, the Appellant is entitled to show that there was sufficient cause for non-appearance of the Counsel. Expression sufficie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the State which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even-handed manner. There is no warrant for according a step-motherly treatment when the State is the applicant praying for condonation of delay. In fact experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cating Authority in paragraph-26 has observed that no specific relationship of the deceased has been mentioned with Shri Karan Gaba and further, no death certificate has been placed on record. The question to be considered was, as to whether there was any sufficient case for nonappearance on 01.05.2024. It was not the case of the Bank that no death took place. The Adjudicating Authority has never directed the Appellant to file the copy of death certificate. We are, thus, of the view that observations made in paragraph-26 that no specific relationship of the deceased has been mentioned and no death certificate has been placed on record are not sufficient ground to reject the cause given in the Restoration Application for restoration. Further, we have noticed that the Adjudicating Authority embarked upon the earlier litigations under Section 13, sub-section (2) between the parties and came to the conclusion that Applicant has not approached the Tribunal with clean hands and rather he is involved in Forum shopping, as was found in paragraph 27. It is relevant to notice that Application under Section 94, was not up for consideration and the consideration on merits of the Application wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t immediately and within the statutory time specified, the discretion is normally exercised in his favour, provided the absence was not mala fide or intentional. For the absence of a party in the case the other side can be compensated by adequate costs and the lis decided on merits. 17. The learned Counsel for the Respondent has also placed reliance on judgment of the Manipur High Court in Longjam Bijoy Singh and Ors. Vs. Shri Keisham Irabot Singh and Anr. In the above case, a suit filed by the plaintiff was dismissed twice and was restored and the suit was filed in the year 2006, Misc. Application was filed in the year 2013 for bringing legal heirs on the record, which was also dismissed for default. In the above circumstances, when the Application came before the Court, the same was dismissed by the Civil Judge Senior Division. Against which order CRP petition was filed in the High Court. In the above reference, the High Court in paragraph 6 has made following observations: [6] The above being the legal position, it has to be seen whether the applicants in the miscellaneous case before the Trial Court were able to show their bonafides and establish sufficient cause by demonstrati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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