Rajeswara Rao Vittanala, Member - (1.) The present Company Application bearing CA No. 128/2017 in C.P. No. 5/241/HDB/2017 is filed by Vamsidhar Maddipatla and another, (which is referred to as application hereunder) U/s. 241, R/w. Rule 48 & 11 of NCLT Rules, 2016 by seeking to set aside the order dated 09.02.2017 and consequentially restore CP. No. 5/241/HDB/2016 to the file of this Tribunal.
(2.) Brief facts, leading to filing of present application, which are relevant to the issue in question, are as follows: 1) Shri Nikhil Baheti, GPA holder of the applicants has filed this Application by stating that the Applicants are under the impression that the case would be prosecuted by their legal counsel. However, their counsel could not attend the hearing before the Tribunal as they are not aware of the listing of the case. They have filed a memo dated 07.03.2017 seeking permission of the Tribunal to withdraw the Company Petition with a leave to file a fresh petition. Subsequently, they came to know that the Company Petition was dismissed on 09.02.2017 for non-prosecution of the case. However, they did not receive the copy of the order. They were under the impression that the Tribunal automatically passes an order basing on the said memo. 2) It is stated that non-appearance of the applicants on the dates, when the matter was listed, is a bona fide mistake, which was neither willful nor wanton. They have expressed their apology for the inconvenience caused to the Tribunal. 3) It is stated that after obtaining legal advice, the present application is filed on 29th June, 2017 by seeking to restore CP by setting aside the dismissal order dated 9.02.17.
(3.) The application is strongly opposed by the 2nd Respondent by filing a counter dated 19.07.2017 through Mr. Rahul Dasguta, by inter-alia stating as follows:- (i) The application is false, frivolous and malicious and the same is liable to be dismissed. The Applicants have not come with clean hands. As per Rule 48 of NCLT Rules, 2016, any restoration application should be admitted only if the same is filed within 30 days from the date of dismissal, which in the present case expired on 9.3.2017 itself. Even if the application is to be entertained after 30 days, it should be accompanied by the application seeking to condone with coherent reasons. (ii) It is stated that the Tribunal ordered notice in main CP on 20.01.2017 to all the parties informing that the CP would be listed for hearing for admission on 30.01.2017. However, no one appeared for the Applicants/Petitioners. Accordingly, the case adjourned to 03.02.2017 & 9.2.2017 due to non-appearance of petitioner and their counsel. On all these dates, Respondent counsel was present. They have also stated that the Company Petition is filed without due authorization and they relied upon judgment of Duroflex Limited v. Johnny Mathew - (CA No. 56 of 2003 in CP No. 18/2003. They further stated that filing a memo is nothing but to mislead this Tribunal. Even the memo filed for withdrawing is also not in the prescribed format, and it is filed so casually as copy of memo was not served on the respondents. They have further stated that the CP itself is not maintainable as they failed to establish essential requirements prescribed under section 231 of the Companies Act, 2013. (iii) It is further contended that the Applicants are engaged in sharp practice of forum shopping and constitute an abuse of the process of law, and the present application is an instance of vexatious litigation. The present litigation is nothing but an effort by the Applicants to coerce the Respondents for their ulterior motives. They have stated that the application is motivated, and it is filed against the interest of Respondent No. 1 Company, and it is not in dispute that the Applicants/Petitioners has filed a civil suit before the City Civil Court seeking similar reliefs. Since NCLT is having jurisdiction over the issue, pursuing simultaneous litigation before civil court is against law and against the principles of natural justice. Therefore they submit that the application is liable to be dismissed.;