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Restoration of Insolvancy Petition

Querist : Anonymous (Querist) 21 October 2010 This query is : Resolved 
My client has filed an Insolvancy Petition for 20,69,000/- against his creditiors and the same is posted for apperance and trial of the Respondents, unfortunately our Senior Civil Judge has dismissed the petition as the petitioner absent. Counsel fro the petitoner is not present. Petitoner did not file any affidavit. Hence petition is dismissed, NO costs. Judgement passed on 27.09.2010. The creditiors/Respondents are strong as politically and economically, if they come to know it would defeinetly harmful to my client. I want to restore the above IP to its original number. Whetehr it is order 9, Rule 9 of CPC or some other ? please inform the mode of restoration of above IP.
Kirti Kar Tripathi (Expert) 21 October 2010
Devajyoti Barman (Expert) 21 October 2010
Yes you could restore by filing the petition under 9 rule 9 of cpc where you have to explain the reasons behind the absence of your advocate reason of which which must be stated to be beyond his control. As 30 days passed from the date of order of dismissal the said restoration petition will have to accompanied by another petition u/s 5 of the Limitations Act explaining the delay in not filing the application within time. Both the petitions will have to supported by affidavit.
Khaleel Ahmed (Expert) 21 October 2010
Mr. Barman well advised.
R.Ramachandran (Expert) 21 October 2010
Order 9 Rule 9 would be applicable only when the Respondents had made an appearance and not the plaintiff. (From statement that if the creditors/respondents come to know it would defeinetly harmful to my client) it appears that the Respondents had not put any appearance.
As such Order 9 Rule 9 may not have any application.
In my view, ORder 9 Rule 4 would be appropriate. (In this case the suit appears to have been dismissed under Order 9 Rule 3).
s.subramanian (Expert) 24 October 2010
Order 9 Rule 4 will apply if process is not taken for service of notice on the respondents. Here the dismissal is due to the non representation on behalf of the petitioner. Order 9 Rule 9 alone will apply.
Querist : Anonymous (Querist) 26 October 2010
Thank You Sir (One and All),

In my view after veryfying and through the Act(Ins Act) , By virtue of the Sec. 5 and 18 the provisions of Order 9 CPC can be invoked except when there is a conflict with any of its provisions, as thre is no specific provisions in IP Act ti restiratuib, we can file it under Order 9, RUle 4 of CPC ....

Am I correct Sir, plese guide me !

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