This order dismisses a miscellaneous application filed by a company to recall a default dismissal of its Section 266 application. The Bench rejected the plea of condoned delay for the company MD's illness and lack of authorization.
Misc. Application No. 11 of 2022 is dismissed; pending I.As. also dismissed. No order as to costs.
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M.A. No. 11. of 2022
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IN TFM, DEBTS RECOVERYTRIBI'NAL,AT LUCKNOW
Present: A.H. Khan, Presiding Officer
Order dated: 26.7.2022
Misc. Application No. 11 of 2022
Sl. No.9l
Present:-
at Ld. Counsel for the applicant Mr. *-a@/$H o+ fur H. tA"1 Ld. Counsel for the resp. bank Mr.S-KJirfieW
The applicants have filed this M.A. under section 22(2)(9) of the Recovery of Debts & Bankruptcy Act, 1993 for recalling the order of dismissal dt.25.10.2021passed in S.A. No.266 of 2020.
The applicants have moved this application on the ground that the applicants have filed S.A. to challenge the measures initiated by the respondent bank. The S.A. was listed on 25.10.2021 for hearing, but the counsel for the applicant has no instruction from the applicant due to communication gap between the applicant and the counsel and as such the S.A. was dismissed in default. Thereafter, the MD of the company fell ill and was unable to communicate with the advocate. There is delay of 53 days in filing the application due to the illness of the MD. He relied upon the judgment passed by Hon'ble Supreme Court regarding limitation and prayed that delay may be condoned and the M.A. be allowed.
The counsel for the respondent FI had strongly opposed the misc. application and stated that on 25.10.2021 the counsel for the applicant had attended other cases, but deliberately did not appear and got the same dismissed in default. The applicant in a well planned manner just to linger the matter got the S.A. dismissed. The misc. application is barred by limitation and it was filed on 18. 1.2022 after a gap of 85 days. No day to day explanation for the delay has been explained. The medical certificate has been obtained from the Orthopedic & Dental clinic for the purposes of this M.A. There is no resolution of the Company authorising the deponent to file the present misc. application and relied upon the judgment of Hon'ble Apex f court in the case of State Bank of Travancore vs. NzTs Kingston Computers l, ,l ,'', / ' //,
M.A. No. 11 of 2022
P\4. Ltd. On these facts, the respondentFI hasprayedfor dismissalofthis M.A.
I have heard the Ld. Counsel for theparties and perusedthe record. The present misc. application has been filed onbehalfof the PrivateLimited Company IWs Ascent Buildtech Pvt. Ltd, but onthe vakalatnama thereis no seal of the Company. The Board of directorsof the companyhad not issued any authorization letter to the deponentwho had signed the pleadingon behalf of the company. The applicants in support ofdelaycondonation application had annexed theprescription of Dr. Ankur Singh,but liomthe perusal of the said medical prescription the said person was never advised to bed rest. The dates mentioned on theprescription are the date when Suresh Gogia visited to the doctor, therefore, the applicantcannot take benefitofthe said medical prescription for the condonation of delay.Althoughthe Hon'ble Supreme Court in the Suo-motopetitionNO.03 of2020 had extended the period oflimitation, but even then the applicants are not entitled to the said benefit because the order of the Hon'ble Supreme courtis not applicablein the cases where the litigant deliberately did not approach to thecourt oflaw. It is the duty of the litigant to always in follow up theproceedingwith the counsel, but in the instant case the applicants havepersuaded the mattervery casually.
It is notthe case of the applicants in the M.A. that due to the ailment they could not contact their advocate.
In this case we have to see the act and conduct of applicantsduring the course oftrial. It is a categorical admissionon the part oftheapplicants that they could not contact their advocate. The applicantsin this case have failed to convinced this Tribunal about their act and conducthowand in what manner they were abstained by the circumstances toapproach their own advocate. The applicants werenegligent inimplementingtheirown rights and remedies. Thus ultimately facilitateddismissalof the S.A. for non-prosecution. The applicants have failed to submitany plausibleand convincing reason in this regard and as such arenot entitled to discretionary relief from this Tribunal. Further, there isno resolution of the Board of Directors of the Company authorizing the deponent tosign the pleading on l/n ,,) behalf of the company. The application as filed by the applicantsis devoid yY
M.A. No. 11 of 2022
merits as well as it is not maintainable and is riable to be dismissed. Accordingly, the misc. application is dismissed. No order as to costs. E The pending I.As. also dismissed accordingly.
Let copies of this order be supplied to the parties as per Rule.
Presiding Officer
2 issues framed by the court
Whether a miscellaneous application seeking to recall a default dismissal order is maintainable despite a delay of 85 days.
Whether the illness of the Managing Director sufficiently explains the 53-day delay in filing the application.
1 provisions across 1 enactments
IWS Ascent Buildtech Pvt. Ltd.
FI Bank
A.H. Khan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
