BEFORE THE HON'BLE NATIONAL COMPANY LAW TRIBUNAL,
CHANDIGARH BENCH, CHANDIGARH
I.A. NO. IA number of the present application OF Year of the present IA
IN
I.A. NO. 110 OF Year of the prior IA
IN
PETITION NO. 210/CHD/CHD/Petition number year
IN THE MATTER OF:
Petitioner's name & ORS.…PETITIONERS
VERSUS
M/S. Respondent company name PVT. LTD.…RESPONDENT
INDEX
| S. NO. | PARTICULARS | PAGES |
|---|
| 1. | Urgent Application. | |
| 3. | Interlocutory Application under Rule 48(2) read with Rule 11 of the NCLT Rules, Year of NCLT Rules, for restoration of IA 110/2022 for impleadment filed by the Applicant in the captioned petition, along with affidavit. | |
DATEAPPLICANT
THROUGH
PLACE
Advocate/law firm name & ASSOCIATES
Office No. Office number of law firm, Delhi-1100XX
Mob.: Law firm mobile number
Email:
FORM-1
BEFORE THE HON'BLE NATIONAL COMPANY LAW TRIBUNAL,
CHANDIGARH BENCH, CHANDIGARH
I.A. NO. IA number of the present application OF Year of the present IA
IN
I.A. NO. 110 OF Year of the prior IA
IN
PETITION NO. 210/CHD/CHD/Petition number year
IN THE MATTER OF:
Petitioner's name & ORS.…PETITIONERS
VERSUS
M/S. Respondent company name PVT. LTD.…RESPONDENT
NOTICE OF MOTION
The party named above requests that the Tribunal may be pleased to grant the following relief:
(a)An order allowing the present Application and thereby restoring the Application bearing IA No. Number of IA sought to be restored/Year of the IA sought to be restored of the Applicant;
(b)Such other and further orders as this Hon'ble Authority may deem fit and proper in the facts and circumstances of the case.
DATEAPPLICANT
THROUGH
PLACE
Advocate/law firm name & ASSOCIATES
Office No. Office number of law firm, Delhi-1100XX
Mob.: Law firm mobile number
Email:
FORM-1
BEFORE THE HON'BLE NATIONAL COMPANY LAW TRIBUNAL,
CHANDIGARH BENCH, CHANDIGARH
I.A. NO. IA number of the present application OF Year of the present IA
IN
I.A. NO. 110 OF Year of the prior IA
IN
PETITION NO. 210/CHD/CHD/Petition number year
IN THE MATTER OF:
Petitioner's name & ORS.…PETITIONERS
VERSUS
M/S. Respondent company name PVT. LTD.…RESPONDENT
URGENT APPLICATION
To,
The Registrar,
National Company Law Tribunal,
Chandigarh.
Dear Sir,
The accompanying Interlocutory Application may kindly be treated as urgent in accordance with the NCLT Rules. The grounds of urgency are as follows:
"Restore IA No. Number of IA sought to be restored/Year of the IA sought to be restored filed by the Applicant to its original number and decide the same on merits."
Thanking you.
DATEAPPLICANT
THROUGH
PLACE
Advocate/law firm name & ASSOCIATES
Office No. Office number of law firm, Delhi-1100XX
Mob.: Law firm mobile number
Email:
FORM-1
BEFORE THE HON'BLE NATIONAL COMPANY LAW TRIBUNAL,
CHANDIGARH BENCH, CHANDIGARH
I.A. NO. IA number of the present application OF Year of the present IA
IN
I.A. NO. 110 OF Year of the prior IA
IN
PETITION NO. 210/CHD/CHD/Petition number year
IN THE MATTER OF:
Petitioner's name & ORS.…PETITIONERS
VERSUS
M/S. Respondent company name PVT. LTD.…RESPONDENT
INTERLOCUTORY APPLICATION UNDER RULE 48(2) READ WITH RULE 11 OF THE NCLT RULES, 2016, FOR RESTORATION OF I.A. BEARING NO. Number of IA sought to be restored/Year of the IA sought to be restored FOR IMPLEADMENT AND FOR CONDONATION OF DELAY IN FILING THE PRESENT APPLICATION
The Applicant hereby submits the present application for the restoration of the application bearing IA No. Number of IA sought to be restored/Year of the IA sought to be restored, filed under Section 60(5) of IBC, Year of the IBC enactment, seeking the impleadment of the Applicant as one of the petitioners. The Applicant has invested his hard-earned money in the said project but has not received possession of his unit(s) from the Respondent till date.
The particulars relevant for the purposes of the present application are set out hereunder:
(i)Jurisdiction of the Bench:
The Applicant declares that the subject-matter of the present Interlocutory Application falls within the jurisdiction of this Bench.
(ii)Limitation:
The IA bearing No. Number of IA sought to be restored/Year of the IA sought to be restored for the impleadment of the Applicant was dismissed due to non-appearance on Day of dismissal of the IA.Month of dismissal of the IA.Year of dismissal of the IA. That, without prejudice to the aforesaid, it is pertinent to mention that the Hon'ble Supreme Court, vide its order dated Day of Supreme Court limitation order/Month of Supreme Court limitation order/Year of Supreme Court limitation order, further extended the limitation period for the filing of all proceedings up to Extended limitation end date (day)/Extended limitation end date (month)/Extended limitation end year. The said order excluded the period from Excluded period start day/Excluded period start month/Excluded period start year to Excluded period end day/Excluded period end month/Excluded period end year for the purposes of limitation, and further granted an extension of Number of days extension granted days with effect from Extension start day/Extension start month/Extension start year, which effectively also extends the limitation period applicable to the present application. The Applicant further declares that the present Interlocutory Application is within the limitation laid down by this Hon'ble Tribunal.
(iii)The facts of the case are set out below:
(a)That in the year 200X, M/s Respondent company name Private Limited, the Respondent herein, launched a scheme for developing, allotting and selling industrial workspace/design studios at "Project zone name Zone", "Project park name Technology Park", Sector Project sector number, Sector location name, Project city/town name, Punjab (hereinafter referred to as the "Said Project"), under a Buy-Back Scheme. The Applicant submitted two separate Application Forms and applied for two units in the Said Project on Day of application form submission.Month of application form submission.200X, and submitted the same along with cheque bearing No. First cheque number dated First cheque date (day).First cheque date (month).200X, drawn on Drawee bank name for Rs. First cheque amount (₹)/-, and cheque bearing No. Second cheque number dated Second cheque date (day).Second cheque date (month).Second cheque date year, drawn on Bank on which the second cheque was drawn for Rs. Second cheque amount (₹)/-, to the Respondent. That the Respondent issued two separate receipts, i.e., Receipt No. First receipt number dated First receipt date (day).First receipt date (month).200X and Receipt No. Second receipt number dated Second receipt date (day).Second receipt date (month).200X, for the same, in favour of the Applicant.
(c)That the Respondent issued a letter dated Approval letter date (day).Approval letter date (month).200X to the Applicant, informing him that his booking of two unit(s) of space in the Said Project had been approved by the Respondent's Board, and that the allotment money of Rs. Allotment money amount (₹)/- was due by Allotment money due day.Allotment money due month.Allotment money due year. The Respondent sent a further letter dated Allotment confirmation letter date (day).Allotment confirmation letter date (month).Allotment confirmation letter year to the Applicant, confirming receipt of the application and of payment of Rs. X,Amount received digit (₹),Amount received digits (₹)/-, and informing the Applicant that he had been allotted Allotted area in square feet square feet of super area in Design Studio 2, in the building/block known as Block A1, on the 6th floor, in the Industrial Knowledge (Technology park name Technology) Park, Sector Project sector number, Sector location name, Punjab, on freehold basis.
(d)That the Applicant paid the allotment money of Rs. X,Allotment money amount digits (₹),Allotment money amount digits (₹)/- to the Respondent vide cheque bearing No. Allotment payment cheque number dated X.Allotment payment cheque month.Allotment payment cheque year, and the Respondent issued Receipt No. Allotment payment receipt number dated Allotment receipt date (day).Allotment receipt date (month).Allotment receipt year for the same, in favour of the Applicant. The Respondent sent a letter dated First instalment demand letter date (day).First instalment demand letter date (month).First instalment demand letter year calling upon the Applicant to pay the first instalment (third payment) of Rs. X,First instalment amount digits (₹),First instalment amount digits (₹)/-, which fell due on First instalment due day.First instalment due month.First instalment due year.
(h)That the applicant made the payment of Rs. First instalment paid amount digits (₹)/- vide cheque no. Instalment payment cheque number dated Instalment cheque date (day).Instalment cheque date (month).Instalment cheque year, drawn on Citibank, and the respondent issued Receipt No. Instalment payment receipt number dated Instalment receipt date (day).Instalment receipt date (month).Instalment receipt year in favour of the applicant. The respondent sent a letter dated Second instalment demand letter date (day).Second instalment demand letter date (month).Second instalment demand letter year to the applicant, intimating the payment of the second instalment (fourth payment) amounting to Rs. Second instalment amount digits (₹)/-. The respondent sent a letter dated Handover intimation letter date (day).Handover intimation letter date (month).Handover intimation letter year to the applicant, informing that the handover of the applicant's units would be made by mid-Month of promised handover. The respondent sent a letter dated Lease rent letter date (day).Lease rent letter date (month).Lease rent letter year to the applicant, informing that the applicant would be entitled to a minimum lease rent of Rs. Minimum lease rent per unit (₹)/- per unit until the space was leased out to an end user after possession of the unit, and further informing that the project would be completed by Project completion date (day).Project completion date (month).Project completion year. The respondent also sent another letter dated Handover window letter date (day).Handover window letter date (month).Handover window letter year to the applicant, informing that the units would be handed over to him between Handover window start day.Handover window start month.Handover window start year and Handover window end day.Handover window end month.
(i)The applicant visited the site on several occasions during the year Start year of site visits to End year of site visits but found no construction activities underway, notwithstanding that the applicant was to be timely delivered his units by Promised delivery date (day).Promised delivery date (month).Promised delivery year. The applicant later learnt that the respondent company had stopped responding to its buyers, including the applicant herein.
(j)That the applicant came to know, in the last week of November Year of learning of dismissal, through Mr. Main petitioner's name, who is the main petitioner, that he, along with other investors/buyers in the said project of the respondent, had filed a petition before this Hon'ble Tribunal against the respondent.
(k)That since the applicant had also been cheated by the respondent, and upon learning that a petition was pending before this Hon'ble Tribunal, the applicant submitted an application under section IBC section number(5) of the IBC, Year of the IBC enactment. The applicant filed an application vide IA No. Impleadment IA number/Year of the impleadment IA before this Tribunal seeking to be impleaded as one of the petitioners in the present case.
(l)That on VC hearing date (day).VC hearing date (month).VC hearing year the matter was listed, and counsel for the applicant attempted to join the hearing through web-based video conferencing (VC). However, owing to poor connectivity and repeated interruptions in the VC link of the Tribunal, the applicant was unable to connect and join the hearing. As a result, the matter went unattended, and the applicant later learnt that the application had been dismissed for non-appearance. Hence the present application.
GROUNDS
(a)That on VC hearing date (day).VC hearing date (month).VC hearing year the matter was listed, and counsel for the applicant attempted to join the hearing through web-based video conferencing. However, owing to poor internet connectivity, the VC connection with the Tribunal could not be established, and the applicant was unable to join the hearing due to the interrupted and poor connection. Consequently, the matter went unattended, and the applicant later learnt that the application had been dismissed for non-appearance. The non-appearance of the applicant was neither intentional nor deliberate, but occurred for the aforesaid reasons; if IA Number of IA sought to be restored is restored, no prejudice will be caused to the other party.
(b)In view of the law laid down by various Hon'ble High Courts, the ultimate object of procedural law is to ensure that substantial justice is done to the parties. The Tribunal/Courts should therefore endeavour to ensure that disputes are resolved on merits in a just, fair and reasonable manner, and should not dismiss matters on technical grounds.
(c)That if the dismissal order dated Dismissal order date (day).Dismissal order date (month).Dismissal order year is not set aside and the impleadment application is not decided on merits, the applicant shall suffer irreparable loss and injury which cannot be compensated in terms of money.
(d)That it is humbly submitted before this Hon'ble Tribunal that the non-appearance of the applicant, as well as the delay in filing the present application, was inadvertent and entirely non-deliberate. The non-appearance and the delay in filing the present application are the result of the surrounding circumstances, including, but not limited to, the COVID-19 pandemic and the applicant's lack of technological knowledge.
(e)That without prejudice to the foregoing, it is pertinent to mention that the Hon'ble Supreme Court, vide its order dated Supreme Court order date (day)/Supreme Court order date (month)/Supreme Court order year, further extended the limitation period for the filing of all proceedings till Extended limitation end date (day)/Extended limitation end date (month)/Extended limitation end year. The said order excluded the period from Excluded period start day/Excluded period start month/Excluded period start year to Excluded period end day/Excluded period end month/Excluded period end year for the purpose of limitation, and provided an extension of Number of days extension granted days from Extension start day/Extension start month/Extension start year, which effectively also extends the limitation period applicable to the present application.
(f)That it is stated that the applicant was diligent in pursuing his case, and the non-appearance at the proceedings was entirely circumstantial and unintentional.
(g)That this Hon'ble Tribunal has the power to allow the present application of the applicant.
(h)That an application for restoration was filed before this Hon'ble Tribunal within the stipulated period; however, owing to a clerical lapse, the said application was filed in A4 format, whereas this Tribunal required the entire application to be filed in A6 format. The applicant is therefore unable to pursue that filing and accordingly files the present application.
(i)That the applicant requests this Hon'ble Adjudicating Authority to consider the facts of the present case and to exercise the powers conferred under Rule 48(2) read with Rule 11 of the NCLT Rules, 2016.
iv. RELIEF(S) SOUGHT
The applicant most humbly prays as under:
(a)That this Hon'ble Adjudicating Authority may be pleased to allow the present application by passing an order restoring the application bearing Number of IA sought to be restored, in exercise of its powers under Rule 48(2) read with Rule 11 of the NCLT Rules; and
(b)That the application bearing Number of IA sought to be restored, dismissed for non-prosecution on Dismissal date (day).Dismissal date (month).Dismissal year, may be restored to its original number and decided on merits, in the interest of justice.
(c)That any other relief which this Hon'ble Tribunal may deem fit and proper may also be granted in the interest of justice.
v. In support of this application, the applicant has attached an affidavit verifying the facts on which the applicant relies in the said application.
The applicant has paid the requisite fee online vide Payment mode/reference for fee.
DATEAPPLICANT
PLACETHROUGH
Advocate/law firm name & ASSOCIATES
Office no. Office number of law firm, Delhi-Law firm PIN code
Mob. Law firm mobile number
Email:
FORM-1
BEFORE THE LD. NATIONAL COMPANY LAW TRIBUNAL,
CHANDIGARH BENCH, CHANDIGARH
I.A. NO. IA number of the present application OF Year of the present IA
IN
I.A. NO. IA number of the prior application OF Year of the prior IA
IN
PETITION NO. Petition/T.C. number of the main petition
IN THE MATTER OF:
Petitioner's name & ORS.…PETITIONERS
VERSUS
M/S. Respondent company name PVT. LTD.…RESPONDENT
AFFIDAVIT VERIFYING THE INTERLOCUTORY APPLICATION
I, Deponent's name, S/o Late Sh. Deponent's father's name, R/o H.No. Deponent's house number, Deponent's address (other than house number), do hereby solemnly affirm and declare as under:
1.That I am the Applicant in the above matter and, as such, I am competent and well conversant with the facts of the present case, and therefore in a position to swear and file this affidavit.
2.That the application annexed hereto has been prepared by my Advocate under my instructions and on the basis of the information and documentation provided by me. I say that the contents of the accompanying application have been explained to me in the vernacular language, namely Hindi, and I, the deponent, hereby state that the contents of the said application are true and correct to the best of my knowledge and belief and are based on the records available with me.
3.That I state that nothing material has been concealed herein, and all information and documentation available with me have been duly provided.
DEPONENT
VERIFICATION
Verified on this Verification date day of Month and year of verification at Place of verification that the contents of this affidavit are true and correct to the best of my knowledge and belief, and that nothing has been concealed therefrom.
DEPONENT