BEFORE THE HON'BLE NATIONAL COMPANY LAW TRIBUNAL,
CHANDIGARH BENCH, CHANDIGARH
I.A. NO. IA number of this restoration application OF Year of this restoration IA
IN
I.A. NO. 110 OF Year of impleadment IA 110
IN
Main petition number
IN THE MATTER OF:
Petitioners' name & ORS.Counsel for petitioners … 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, 2016, for restoration of IA Number of application sought to be restored for impleadment filed by the Applicant in the captioned petition, along with affidavit. | |
DATEAPPLICANT
THROUGH
PLACE
Advocate firm name & ASSOCIATES
Office No. Office number of advocate, Delhi-1100XX
Mob.: Advocate's mobile number
Email:
FORM-1
BEFORE THE HON'BLE NATIONAL COMPANY LAW TRIBUNAL,
CHANDIGARH BENCH, CHANDIGARH
I.A. NO. IA number of this restoration application OF Year of this restoration IA
IN
I.A. NO. 110 OF Year of impleadment IA 110
IN
Main petition number
IN THE MATTER OF:
Petitioners' name & ORS.Counsel for petitioners … PETITIONERS
VERSUS
M/S. Respondent company name PVT. LTD.… RESPONDENT
NOTICE OF MOTION
The party named above most respectfully requests that the Tribunal may be pleased to grant the following reliefs:
(a)An order allowing the present Application and thereby restoring the Application bearing IA No. Number of application sought to be restored/Year of application sought to be restored filed by 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 firm name & ASSOCIATES
Office No. Office number of advocate, Delhi-1100XX
Mob.: Advocate's mobile number
Email:
FORM-1
BEFORE THE HON'BLE NATIONAL COMPANY LAW TRIBUNAL,
CHANDIGARH BENCH, CHANDIGARH
I.A. NO. IA number of this restoration application OF Year of this restoration IA
IN
I.A. NO. 110 OF Year of impleadment IA 110
IN
Main petition number
IN THE MATTER OF:
Petitioners' name & ORS.Counsel for petitioners … 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 application sought to be restored/Year of application sought to be restored filed by the Applicant to its original number and decide the same on merits."
Thanking you.
DATEAPPLICANT
THROUGH
PLACE
Advocate firm name & ASSOCIATES
Office No. Office number of advocate, Delhi-1100XX
Mob.: Advocate's mobile number
Email:
FORM-1
BEFORE THE HON'BLE NATIONAL COMPANY LAW TRIBUNAL,
CHANDIGARH BENCH, CHANDIGARH
I.A. NO. IA number of this restoration application OF Year of this restoration IA
IN
I.A. NO. 110 OF Year of impleadment IA 110
IN
Main petition number
IN THE MATTER OF:
Petitioners' name & ORS.Counsel for petitioners … 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. 110/Year of impleadment IA 110 FOR IMPLEADMENT AND FOR CONDONATION OF DELAY IN FILING THE PRESENT APPLICATION.
The Applicant most respectfully submits this application for restoration of the Application bearing IA No. Number of application sought to be restored/Year of application sought to be restored, filed under Section 60(5) of IBC, IBC enactment year, for impleading the Applicant as one of the petitioners, inasmuch as the Applicant has invested his hard-earned money in the said project but has not been given possession of his unit(s) by the Respondent till date.
The particulars relevant for the purpose of this application are set out hereunder:
i.Jurisdiction of the Bench;
The Applicant declares that the subject matter of the Interlocutory Application falls within the jurisdiction of this Bench.
ii.Limitation:
The IA bearing No. Number of application sought to be restored/Year of application sought to be restored for the impleadment of the Applicant was dismissed for non-appearance on Date IA was dismissed for non-appearance (day).Date IA was dismissed for non-appearance (day).Year IA was dismissed for non-appearance. Without prejudice to the aforesaid, it is pertinent to mention that the Hon'ble Supreme Court, vide its order dated Supreme Court limitation order date (day)/Supreme Court limitation order date (month)/Supreme Court limitation 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 Limitation exclusion period start (day)/Limitation exclusion period start (month)/Limitation exclusion period start year to Limitation exclusion period end (day)/Limitation exclusion period end (month)/Limitation exclusion period end year for the purpose of limitation, and granted an extension of Number of days of extension granted days from Extension start date (day)/Extension start date (month)/Extension start year, which effectively excludes the limitation period in the present application as well. The Applicant further declares that the Interlocutory Application is within the limitation prescribed 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", "Technology park name Technology Park", Sector Sector number of project, X.X.X Nagar, Project location area name, Punjab (hereinafter referred to as the "Said Project"), under a Buy-Back Scheme. The Applicant filed two separate Application Forms and applied for two units in the Said Project on Date of first application form (day).Date of first application form (month).200X, and submitted the same along with cheque No. First cheque number dated First cheque date drawn on Bank on which first cheque drawn Bank for Rs. First cheque amount (₹)/-, and cheque No. Second cheque number dated Second cheque date (day).Second cheque date (month).Second cheque year drawn on Bank on which second cheque drawn Bank for Rs. Second cheque amount (₹)/-, which were submitted to the Respondent. The Respondent issued Receipt No. First receipt number dated First receipt date (day).First receipt date (month).First receipt year 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 Allotment approval letter date (day).Allotment 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 date (day).Allotment money due date (month).Allotment money due year. The Respondent sent a letter dated Allotment confirmation letter date (day).Allotment confirmation letter date (month).Allotment confirmation letter year to the Applicant, confirming receipt of payment of Rs. Payment amount confirmed (₹)/- 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 called Block A1, on the 6th floor of the units in the Industrial Knowledge (Technology park name Technology) Park, Sector Sector number of project, Project location area name, Punjab, on freehold basis.
(d)That the Applicant paid the allotment money of Rs. Allotment money paid amount (₹)/- to the Respondent vide cheque No. Allotment payment cheque number dated X.Allotment payment cheque date (month).Allotment payment cheque year in favour of the Respondent, and the Respondent issued Receipt No. Allotment payment receipt number dated Allotment payment receipt date (day).Allotment payment receipt date (month).Allotment payment receipt year for the same in favour of the Applicant. The Respondent sent a letter dated First installment demand letter date (day).First installment demand letter date (month).First installment demand letter year calling upon the Applicant to pay the first instalment (third payment) of Rs. First installment amount (₹)/-, which was due on First installment due date.
(h)That the applicant made payment of Rs. X,Installment payment amount part 1,Installment payment amount part 2/- vide cheque bearing no. Installment payment cheque number dated Installment payment cheque date (day).Installment payment cheque date (month).Installment payment cheque year, drawn on Bank on which installment cheque drawn, in respect of which the respondent issued Receipt No. Installment payment receipt number dated Installment payment receipt date (day).Installment payment receipt date (month).Installment payment receipt year in favour of the applicant. The respondent thereafter sent a letter dated Second installment demand letter date (day).Second installment demand letter date (month).Second installment demand letter year to the applicant, calling upon the applicant to pay the next instalment (Fourth Payment) amounting to Rs. Second installment amount (₹)/-.
(i)That the respondent, by a letter dated Handover assurance letter date (day).Handover assurance letter date (month).Handover assurance letter year, informed the applicant that the units of the applicant would be handed over by mid-Promised handover month and year. The respondent further sent a letter dated Lease rent assurance letter date (day).Lease rent assurance letter date (month).Lease rent assurance 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 was delivered, and further informed that the project would be completed by Promised project completion date. The respondent also sent another letter dated Second handover assurance letter date (day).Second handover assurance letter date (month).Second handover assurance letter year to the applicant, informing that the units of the applicant would be handed over to him between Handover period start date (day).Handover period start date (month).Handover period start year and Handover period end date.
(j)That the applicant visited the project site on several occasions during the year Site visit period start year to Site visit period end year but found no construction activities being carried out, which cast doubt upon the timely delivery of the units to the applicant by Expected possession date (day).Expected possession date (month).Expected possession year. The applicant subsequently learnt that the respondent company had ceased responding to its buyers, including the applicant herein.
(k)That the applicant came to learn, in the last week of November Year applicant learnt of petition, through Mr. Name of main petitioner who informed applicant, 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.
(l)That, having been cheated at the hands of the respondent, and upon learning that a petition was pending before this Hon'ble Tribunal, the applicant filed an application under section IBC section number for application(5) of the IBC, IBC enactment year. The applicant filed an application vide IA No. Number of impleadment IA filed/Year of impleadment IA filed before this Tribunal seeking impleadment as one of the petitioners in the present case.
(m)That on Hearing date of IA (day).Hearing date of IA (month).Year of IA hearing, when the matter was listed, the counsel for the applicant attempted to join the proceedings through the web-based video conferencing (VC) facility of the Tribunal. However, owing to poor connectivity and repeated interruptions in the VC connection of the Tribunal, the counsel was unable to connect and join the proceedings. In consequence, the matter went unattended, and the applicant later came to learn that the application of the applicant had been dismissed for non-appearance. Hence the present application.
Grounds :-
(a)That on Hearing date of IA (day).Hearing date of IA (month).Year of IA hearing, when the matter was listed, the counsel for the applicant attempted to join the proceedings through the web-based video conferencing facility, but owing to poor internet connectivity and repeated interruptions in the VC connection of the Tribunal, the applicant was unable to connect. The matter therefore 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 was solely due to the aforesaid reason. No prejudice shall be caused to the other party if the said IA is restored.
(b)That, as 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 Tribunals and Courts are therefore obliged to endeavour to see that disputes are resolved on merits in a just, fair and reasonable manner, and ought not to be dismissed 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 adequately 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 wholly non-deliberate. The non-appearance and the delay are the result of the prevailing circumstances, including but not limited to the COVID pandemic and the lack of technological proficiency of the applicant.
(e)That without prejudice to the aforesaid, it is pertinent to mention that the Hon'ble Supreme Court, vide its order dated Supreme Court limitation order date (day)/Supreme Court limitation order date (month)/Supreme Court limitation order year, further extended the period of limitation for filing all proceedings till Extended limitation end date (day)/Extended limitation end date (month)/Extended limitation end year. The said order excluded the period from Limitation exclusion period start (day)/Limitation exclusion period start (month)/Limitation exclusion period start year to Limitation exclusion period end (day)/Limitation exclusion period end (month)/Limitation exclusion period end year for the purpose of limitation, and granted an extension of Number of days of extension granted days from Extension start date (day)/Extension start date (month)/Extension start year, which effectively excludes the limitation period applicable to the present application.
(f)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 possesses the power to allow the present application of the applicant.
(h)That the 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 requires the entire application to be filed in A6 format; the applicant is therefore filing the same afresh before this Hon'ble Tribunal in the requisite format.
(i)That the applicant respectfully requests this Hon'ble Adjudicating Authority to consider the facts of the present case and to exercise the powers vested under Rule 48(2) read with Rule 11 of the NCLT Rules, 2016.
iv.Relief(s) Sought:-
The Applicant most respectfully prays as under:
a)This Hon'ble Adjudicating Authority may be pleased to allow the present application by passing an order restoring the application bearing IA No. Number of application sought to be restored/Year of application sought to be restored, in exercise of its powers under Rule 48(2) read with Rule 11 of the NCLT Rules; and
b)Restore the application bearing IA No. Number of application sought to be restored/Year of application sought to be restored, which was dismissed for non-prosecution on Date IA was dismissed for non-prosecution (day).Date IA was dismissed for non-prosecution (day).Year IA was dismissed for non-prosecution, to its original number and direct that it be decided on merits, in the interest of justice.
c)Grant any other relief as this Hon'ble Authority may deem fit and proper in the interest of justice.
v.In support of this application, the applicant has annexed an affidavit verifying the facts upon which the applicant relies in the said application.
The applicant has paid the requisite fee online via Mode of payment of fee.
DATEAPPLICANT
THROUGH Counsel for petitioners
PLACEPlace of verification
Advocate firm name & ASSOCIATES
Office No. Office number of advocate, Delhi-Pin code of advocate's office
Mob.: Advocate's mobile number
Email: Email address of advocate
FORM-1
BEFORE THE HON'BLE NATIONAL COMPANY LAW TRIBUNAL, CHANDIGARH BENCH, CHANDIGARH
I.A. NO. IA number of this restoration application OF Year of this restoration IA
IN
I.A. NO. 110 OF Year of impleadment IA 110
IN
Main petition number
IN THE MATTER OF:
Petitioners' 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 and address, the above-named deponent, 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, 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 state 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 to my advocate.
DEPONENT
VERIFICATION
Verified on this Date of verification 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