R Varadharajan, Member - (1.) This is an application which has been filed by the Petitioner/Operational Creditor seeking to set aside the order dated 3.7.2017 and to have the Petition restored as filed by the Petitioner to its original position in the interest of justice. The application is filed under the provisions of Order 9. Rule 4 of Section 151 CPC and along with Rule 48 (2) of NCLT Rules. 2016. At the time of oral submissions by the Counsel for the Petitioner it was submitted that keeping in view Section 424 of the Companies Act. 2013. wherein it is stated that this Tribunal shall be guided by the principles of natural justice and subject to the other provisions of this Act or of the Insolvency and Bankruptcy Code, 2016 or any rules made there under, the Tribunal/Appellate Tribunal shall have the power to regulate there own procedure. The Learned Counsel for the applicant also relies on the decision of JK Jute Mills Co Ltd. v. Surendra Trading Co,2017 138 CLA 258 (NCLAT) . in order to contend the time period of 14 days as prescribed under the IBC is not mandatory in so far as this Tribunal is concerned. Thus, taking into consideration the provisions cited as in the application as well as in the above Judgement of the Hon'ble Appellate Tribunal, it is submitted that this Application should be allowed for restoration of the Petition to its original state prior to its dismissal.
(2.) We are not convinced by the submissions made by the Learned Counsel for the Applicant It is required to be seen that IBC,2016 is a time bound process and even in the judgement which the Applicant has chosen to rely on namely JK Jute Mills Co. Ltd., it has been specifically stated that in so far as the Petitioner under IBC as well as IRPs are concerned, the procedure contemplated therein should be considered as mandatory and not directory. Perusal of the file and the order sheet discloses that the Petition was filed on 22.6.2017 i.e. the said date being the date of presentation. Subsequently, on 29.6.2017, the matter was listed before this Tribunal. However, none seem to have appeared on behalf of the Petitioner and in the circumstances keeping in mind the principles of natural justice as contended by the Petitioner, the same was posted on 3.7.2017 wherein the following order has been passed. None appeared for the petitioner. Despite the second call TODAY an opportunity being given earlier when the matter was posted for hearing on 29.6.2017, no appearance was made on behalf of the petitioner. In the circumstances, this Tribunal is constrained to dismiss the petition for non-prosecution. Let the file be consigned to records after adhering to necessary formalities.
(3.) It is quite evident from the above order passed by this Tribunal that sufficient opportunity for appearance of the Petitioner had been given but unfortunately the Petitioner despite being the Operational Creditor and who is required to be vigilant in prosecuting the case has failed to do so. This Tribunal cannot be made perpetually wait for the appearance of the parties to prosecute the matter. Further, the provisions of law under which this application has been moved also seems not applicable, in view of the specific time frame provided in IBC,2016 which has been elaborately dealt with in the decision of the Hon'ble Appellate Tribunal passed in JK Jute Mills Co Ltd. case and for the sake of brevity, the same has not been reproduced and by now it has become well established precedent in relation to the procedural compliances and the time limits required to be adhered to as contemplated under IBC,2016. Thus, claim of applicability of Section 434 and relevance of the Companies Act, 2013 may not be also of much help/assistance to the Petitioner as in view of the facts, as stated above sufficient opportunity had been given to the Petitioner to make his appearance and prosecute the Petition which he has filed to avail. It is to be noted that the Tribunal under IBC,2016 is not conducting a trial as is contemplated under CPC, but on the other hand is obliged to deal with a Petition as mandated under IBC.2016 which will defeat the avowed object for which IBC,2016 was enacted. Taking into consideration all the above, this Application stands dismissed without cost. However, the Petitioner will be at liberty to file a fresh Petition, subject to limitation and after the compliance of all requisite formalities as required to be complied with under the provisions of IBC.2016, if so advised as this Petition has not been dismissed upon consideration of merits.;