2017 (9) TMI 2038 - HC - Companies Law

Application for recalling of the order - prayer for staying the order of advertisement - notice issued by this Court in the petition was not served and ex parte order has been passed by this Court - HELD THAT - It deserves to be noted that the Applicants have also preferred Civil Application (O.J.) No. 418/2016 for recalling of the order dated 07.04.2016 passed by this Court (Coram Hon ble Ms.Justice Abhilasha Kumari) in Company Petition No. 10/2016 on the same grounds which are raised in this application. The said application has been dismissed by this Court in 2017 (6) TMI 1405 - GUJARAT HIGH COURT and has observed thus The record therefore reveals that though notice by the normal mode of service may not have been served before the order of admission dated 07.04.2016 was passed however it was served by direct service on 18.02.2016 to applicants Nos. 2 to 4 and on 28.01.2016 on applicant No. 1. This means that all the applicants were served by direct service before the passing of the order dated 07.04.2016. The ground for recall of the said order on the basis of the alleged misleading presentation of facts with regard to the service of notice of the winding-up petition therefore cannot stand in the face of the record. It is a matter of record that the order which is sought to be recalled by this application is based on the order dated 07.04.2016. Hence on the same reasons present application deserves to be dismissed and is hereby dismissed.

Summary

Issues:
Recall of court order based on alleged improper service of notice and ex parte order.

Analysis:
The Applicants sought to recall an order dated 09.06.2016 in Company Petition No. 10/2016, claiming the notice was not served, and an ex parte order was passed. The Court noted a previous application for recall was dismissed, where it was found that notice was served through direct service and normal mode, with reports from the Bailiff confirming service. The Court observed that all Applicants were served through direct service before the order was passed. The Court clarified a typographical error in an earlier order regarding the date of service. The Applicants raised concerns about the legitimacy of the winding-up claim and the authority of the petitioner, but the Court held these grounds could not be raised at this stage as notice was duly served, and the Applicants chose not to appear earlier. Ultimately, the Court found no legitimate grounds for the recall of the order dated 07.04.2016 and rejected the application, stating the present application deserved dismissal on the same grounds.

This judgment revolves around the issue of recalling a court order due to alleged improper service of notice and the passing of an ex parte order. The Court meticulously examined the service of notice through direct service and the normal mode, as confirmed by reports from the Bailiff. It was established that all Applicants were served through direct service before the order was passed, debunking the claim of improper service. The Court also addressed a typographical error in an earlier order regarding the date of service, clarifying the discrepancy. The Applicants' additional arguments regarding the legitimacy of the winding-up claim and the authority of the petitioner were dismissed by the Court, emphasizing that such grounds should have been raised earlier when notice was duly served, and the Applicants had the opportunity to participate in the proceedings. Ultimately, the Court found no valid reasons to recall the order and rejected the application, highlighting the importance of timely participation and raising relevant issues during legal proceedings.