BEFORE THE NATIONAL CONSUMER DISPUTES REDRESSAL

COMMISSION AT NEW DELHI

I.A. NO. _______ OF 2023
IN
CONSUMER COMPLAINT NO. 538 of 2018

IN THE MATTER OF:

Shri Lakshmi Cotsyn Limited .... Complainant
Versus
Export Credit Guarantee Corporation
of India Limited .... Opposite Party/
Applicant
INDEX
Sr. No. Particulars Page Nos.
1. APPLICATION SEEKING DISMISSAL OF
THE PENDING CONSUMER COMPLAINT
UNDER SECTION 38(7) R/W 38(9) R/W
38(12) R/W 59 OF THE CONSUMER
PROTECTION ACT, 2019 AND UNDER
PRINCIPLES ANALOGOUS TO ORDER IX
RULE 8 CPC AND ORDER XXII RULE 8(2)
R/W RULE 9 CPC AND SECTION 151 CPC
ALONG WITH AFFIDAVIT.
2. Annexure A/1
A true copy of the order dated 30.05.2018 passed
by the Hon’ble NCLT, Allahabad Bench in
Company Petition (IB) No. 142/ALD/2018.
3. Annexure A/2
A true copy of order dated 01.07.2020 passed by
the Hon’ble NCLT, Allahabad Bench in CA No.
55/2019 in Company Petition (IB) No.
142/ALD/2018.
4. Annexure A/3
A true copy of judgment dated 27.07.2020
passed by the Hon’ble National Company Law
Appellate Tribunal, New Delhi in Company
Appeal (AT) (Insolvency) No. 620 of 2020.
5. Annexure A/4 (Colly)
 True copies of the orders passed by the Hon’ble
NCLT, Allahabad Bench in Company Petition
(IB) No. 142/ALD/2018 from 25.01.2022 till
date.

Filed by:

Abhishek Puri / Surbhi Gupta

Sahil Grewal
(Counsel for the Opposite Party/Applicant)
A-18, 3rd Floor, Jangpura Extension,
New Delhi 110014.
Email:- registrardel@thelawpoint.com
Phone: +91 11 43508322
PLACE: NEW DELHI
FILED ON:
 BEFORE THE NATIONAL CONSUMER DISPUTES REDRESSAL
COMMISSION AT NEW DELHI
I.A. NO. _______ OF 2023
IN
CONSUMER COMPLAINT NO. 538 of 2018

IN THE MATTER OF:

Shri Lakshmi Cotsyn Limited .... Complainant

Versus
Export Credit Guarantee Corporation
of India Limited .... Opposite Party/
Applicant

APPLICATION SEEKING DISMISSAL OF THE PENDING

CONSUMER COMPLAINT UNDER SECTION 38(7) R/W 38(9) R/W
38(12) R/W 59 OF THE CONSUMER PROTECTION ACT, 2019 AND
UNDER PRINCIPLES ANALOGOUS TO ORDER IX RULE 8 CPC
AND ORDER XXII RULE 8(2) R/W RULE 9 CPC AND SECTION
151 CPC.

MOST RESPECTFULLY SHOWETH:

1. The present Application is being filed by the Opposite Party in the
present matter seeking dismissal of the present Complaint on account
of non-prosecution of the same by the Complainant Company and on
account of the Complaint being rendered as such infructuous on
account of liquidation order dated 01.07.2020 having being passed
against the Complainant Company under Section 33 & 34 of the
Insolvency and Bankruptcy Code, 2016 by the Hon’ble National
Company Law Tribunal (hereinafter referred to as “NCLT”). The
Appeal against the said liquidation order has also been dismissed vide
judgment dated 27.07.2020 passed by the Hon’ble National Company
Law Appellate Tribunal (hereinafter referred to as “NCLAT”).
 Thereafter, the Liquidator since 13.01.2022 has shown no interest in
prosecuting the present Complaint despite being well aware of the
same.
2. In this regard, the brief factual conspectus, on account of which the
present Application has been preferred is set-out hereinbelow.
I. Repeated adjournments have been sought by the
Complainant Company from March, 2018 till 08.11.2019,
and thereafter, the Complainant has completely failed to
appear in the hearings dated 29.10.2021, 04.03.2022,
09.06.2022, 08.11.2022 and 29.11.2022.
3. It is submitted that the present Complaint was filed in 2018 and
thereafter, as is evident from orders dated 14.03.2018, 24.04.2018,
12.07.2018, 06.09.2018, 09.10.2018, 11.12.2018, 11.03.2019,
31.05.2019, 08.11.2019, 21.09.2020 and 05.05.2021 passed by this
Hon’ble Commission in the captioned matter, the matter remained
pending at pre-notice stage, inter-alia, on account of defects not being
cured by the Complainant and on account of repeated adjournments
sought by the Complainant.
4. Vide order dated 29.10.2021 passed by this Hon’ble Commission,
notice was issued in the captioned matter in the absence of any
appearance by the Complainant.
5. Vide order dated 13.01.2022 passed by this Hon’ble Commission, this
Hon’ble Commission noted that service has not been effected on the
Opposite Party by the Complainant in the captioned matter and in this
regard, the only submission made by the Ld. Counsel for the
Complainant was that “Complainant is under liquidation and IPC
proceedings have been commenced…. Learned counsel for the
complainant seeks time to file affidavit intimating the status of the
liquidation proceedings”. However, from the records obtained by the
Opposite Party/Applicant from this Hon’ble Commission, it is seen
 that no such Affidavit has been filed till date in the present matter by
the Complainant.
6. Thereafter, the Complainant has failed to appear before this Hon’ble
Commission in the subsequent hearings on 04.03.2022, 09.06.2022,
18.11.2022 and 29.11.2022. No service on the Opposite Party has
been effected by the Complainant and no copy of the Complaint has
been provided by the Complainant to the Opposite Party till date.
7. It is submitted that in view of the above, it stands clear that the present
Complaint is not being prosecuted by the Complainant. It is humbly
submitted that Section 38(7) of the Consumer Protection Act, 2019
which is analogous to Section 13(3A) of the Consumer Protection Act,
1986, mandates that “three months from the date of receipt of notice
by Opposite Party” and that “no adjournment shall ordinarily
granted …. unless sufficient cause is shown and the reasons for grant
of adjournment have been recorded in writing by the Commission”.
8. The present Complaint has been pending for more than five years
before this Hon’ble Commission and even after issuance of notice by
this Hon’ble Commission on 29.10.2021, the service of the said notice
has never been effected on the Opposite Party by the Complainant and
the matter has continued to remain pending for due service upon the
Opposite Party by the Complainant till date. Repeated adjournments
have been sought by the Complainant Company in the hearings dated
14.03.2018, 24.04.2018, 12.07.2018, 06.09.2018, 09.10.2018,
11.12.2018, 11.03.2019, 31.05.2019, 08.11.2019, for frivolous reasons
and thereafter, the Complainant has completely failed to appear in the
hearings dated 29.10.2021, 04.03.2022, 09.06.2022, 08.11.2022 and
29.11.2022 before this Hon’ble Commission.
9. This Hon’ble Commission is vested with the powers of a Civil Court
under the Code of Civil Procedure by virtue of Section 38(9) of the
Consumer Protection Act, 2019 which is analogous to Section 13(4)
of the Consumer Protection Act, 1986 and hence, by applying the
 principles of Order IX Rule 8 of Code of Civil Procedure, has the
power to dismiss the Complaint where the Opposite Party appears and
the Complainant does not appear when the Complaint is called for
hearing.
10. In view of the foregoing facts and position in law, it is submitted that
the present Complaint is a fit case for dismissal on account of repeated
adjournments sought till 08.11.2019 by the Complainant Company
and on account of the Complainant having completely failed to appear
in the hearings dated 29.10.2021, 04.03.2022, 09.06.2022, 08.11.2022
and 29.11.2022 before this Hon’ble Commission, all of which clearly
establishes a case of non-prosecution of the Complaint by the
Complainant Company.
II. The present Complaint is as such rendered as infructuous on
account of liquidation order dated 01.07.2020 having being passed
against the Complainant Company under Section 33 & 34 of the
Insolvency and Bankruptcy Code, 2016 by the Hon’ble National
Company Law Tribunal, and thereafter the Liquidator having
shown no interest and neglecting to continue the present
Complaint.
11. It is submitted that vide order dated 30.05.2018, the Hon’ble NCLT,
Allahabad Bench has been pleased to admit the Insolvency Petition
bearing No. Company Petition (IB) No. 142/ALD/2018 and to initiate
Corporate Insolvency Resolution Process under the Insolvency and
Bankruptcy Code, 2016 against the present Complainant Company. A
true copy of the order dated 30.05.2018 passed by the Hon’ble NCLT,
Allahabad Bench in Company Petition (IB) No. 142/ALD/2018 is
annexed hereto and marked as Annexure A/1.
12. Thereafter, since no successful resolution plan was approved by the
Committee of Creditors during the Corporate Insolvency Resolution
Process, vide order dated 01.07.2020, the Hon’ble NCLT, Allahabad
Bench has been pleased to direct that the Complainant
 Company/Corporate Debtor shall go into liquidation, in exercise of its
powers under Section 33 of the Code. The Hon’ble NCLT, Allahabad
Bench has further appointed the Resolution Professional as the
Liquidator. A true copy of order dated 01.07.2020 passed by the
Hon’ble NCLT, Allahabad Bench in CA No. 55/2019 in Company
Petition (IB) No. 142/ALD/2018 is annexed hereto and marked as
Annexure A/2.
13. The Appeal against the said liquidation order has also been dismissed
vide judgment dated 27.07.2020 passed by the Hon’ble National
Company Law Appellate Tribunal. A true copy of judgment dated
27.07.2020 passed by the Hon’ble National Company Law Appellate
Tribunal, New Delhi in Company Appeal (AT) (Insolvency) No. 620
of 2020 is annexed hereto and marked as Annexure A/3.
14. It is submitted that once the Company has gone under liquidation, the
consequence thereof is that unlike during CIRP process where the
successful Resolution Applicant acquires the Company as a going
concern, the assets of the Corporate Debtor in terms of Section 54 of
the Code are completely liquidated and Corporate Debtor stands
dissolved.
15. The liquidation against the Complainant Company is ongoing and
progress reports are being filed by the Liquidator with respect to the
ongoing Liquidation Process. True copies of the orders passed by the
Hon’ble NCLT, Allahabad Bench in Company Petition (IB) No.
142/ALD/2018 from 25.01.2022 till date is annexed hereto and
marked as Annexure A/4 (Colly).
16. In the present case, the Counsel on behalf of the Liquidator of the
Complainant Company also appeared before this Hon’ble Commission
on 13.01.2022, however, thereafter, the said Counsel has neither filed
an Affidavit intimating the status of the liquidation proceedings nor
has subsequently appeared before this Hon’ble Commission during the
hearings on 04.03.2022, 09.06.2022, 08.11.2022 and 29.11.2022.
 Therefore, it is clear that the Liquidator has neglected and shown no
interest to continue the present Complaint despite being well aware of
the same.
17. This Hon’ble Commission is vested with the powers of a Civil Court
under the Code of Civil Procedure by virtue of Section 38(12) of the
Consumer Protection Act, 2019 which is analogous to Section 13(7)
of the Consumer Protection Act, 1986 and hence, by applying the
principles of Order XXII Rule 8(2) r/w Order XXII Rule 9 of Code of
Civil Procedure, has the power to dismiss the Complaint where during
the Complainant’s insolvency/liquidation, the Liquidator has
neglected to continue the Complaint.
18. In view of the foregoing facts and position in law, it is submitted that
the present Complaint is a fit case for dismissal on account of the
liquidation order having been passed against the Complainant
Company and the Liquidator having shown no interest in utilizing the
Liquidation Funds for prosecuting the present Complaint despite being
well aware of the same.
19. That the present Application is bonafide and in the interest of justice
and it is submitted that despite the Complainant Company or its
Liquidator not being interested in prosecuting the present Complaint,
the Opposite Party is being constrained to invest substantial time and
resources to defend itself in the present Complaint.
20. Therefore, it is humbly prayed that in view of the continued non-
prosecution of this Complaint by the Complainant, the Complaint may
be dismissed.
PRAYERS
In view of the aforementioned facts and circumstances the Opposite
Party/Applicant most humbly prays that this Hon’ble Commission may be
pleased to:
a) Dismiss the captioned Complaint on account of continued non-
prosecution of the same by the Complainant Company, and/or on
 account of the liquidation order having been passed against the
Complainant Company and the Liquidator having shown no interest
in prosecuting the present Complaint;
b) Pass any other order that this Hon’ble Commission deems fit in the
interest of justice.

OPPOSITE PARTY

Filed by:

Abhishek Puri / Surbhi Gupta

Sahil Grewal
(Counsel for the Opposite Party/Applicant)
A-18, 3rd Floor, Jangpura Extension,
New Delhi 110014.
Email:- registrardel@thelawpoint.com
Phone: +91 11 43508322
PLACE: NEW DELHI
FILED ON:
 BEFORE THE NATIONAL CONSUMER DISPUTES REDRESSAL
COMMISSION AT NEW DELHI
I.A. NO. _______ OF 2023
IN
CONSUMER COMPLAINT NO. 538 of 2018

IN THE MATTER OF:

Shri Lakshmi Cotsyn Limited .... Complainant

Versus
Export Credit Guarantee Corporation
of India Limited .... Opposite Party/
Applicant

AFFIDAVIT
I, Prerna Sinha, wife of Shri Shrey Dalela, aged about 36 years, working as
Manager Legal of the Opposite Party – Corporation at its officer at NBCC,
Commercial Complex, 4th Floor, Tower-3, East Kidwai Nagar, Delhi –
110023, do hereby solemnly affirm and declare as under:

1. That I am authorized signatory of Opposite Party/Applicant in the

above matter and am well conversant with the facts of this case and
am competent to swear to this Affidavit.
2. That the accompanying Application on behalf of the Opposite
Party/Applicant have been drafted by the Counsel for the Opposite
Party/Applicant as per my instructions. I have read the Application
and have understood the contents thereof.
3. I say that the contents of the accompanying Application are true and
correct to the best of my knowledge which is based on records
maintained by the Opposite Party/Applicant and nothing material has
been concealed therefrom.
 4. I say that the Annexures filed with the Application are true copies of
their respective originals and are necessary documents.

DEPONENT
VERIFICATION
I, swear that the contents of my above Affidavit are true and correct to my
knowledge which is based on records maintained by the Opposite Party. No
party of it is false and nothing relevant has been concealed therein.

Verified at New Delhi on this ____ day of February, 2023.

DEPONENT