TMI Blog2015 (5) TMI 90X X X X Extracts X X X X X X X X Extracts X X X X ..... applicant has stated that on 25.03.2013, the applicant sought for the information as to the date and time in the additional board on which the Company Petition was displayed and that such information was received by the applicant on 09.04.2013. From 09.04.2013 till 18.04.2013, the applicant had ample time to move the present application or at least an application to request the Court to direct that the advertisement may not be made as they were to file an applicant to recall the order of admission. As already stated above, the advertisement was done on 19.04.2013.The applicant filed the present application on 25.04.2013. There is no sufficient cause shown for such delay. The applicant has, otherwise, made various averments on merits running in at least 22 pages and has also produced various documents. In answer to that, the respondent has filed a detailed reply containing at least about eight pages on merits. The applicant has filed affidavit-in-rejoinder of 14 pages and one more document along with the same. The respondent has filed affidavit-in-sur-rejoinder and has produced the balance sheet. The learned counsel for the parties also made several submissions on merits. It can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Advocate Shri. S.D. Padiyar in the matter. Since Advocate Kantak had filed his appearance, Advocate Padiyar requested the Director of the applicant for N.O.C. from Advocate Kantak and informed the Director of the applicant that till the N.O.C. is received by him and Advocate appearing earlier is discharged from the matter, he would not be able to represent the applicant. The Director of the applicant accordingly on 21.02.2013 obtained N.O.C. from Advocate Kantak. However, due to his preoccupation in business activities, the applicant could not deliver the same to Advocate Padiyar and Advocate Kantak was also to seek discharge from the matter on the next listing date of the matter. In the meantime, the reply was prepared but the same could not be filed as the time limit in terms of order dated 14.12.2012 had already expired. The applicant intended to file reply on the next listing date of the petition by seeking extension of time before the Court. On 25.02.2013, on account of non availability of Division Bench of this Court a board of Single Judge was listed. The said board was listed without sufficient prior notice and therefore the Judge was pleased to accommodate and adjourn most ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter came up for admission on 21.03.2013, the applicant was not represented before this Court. The matter was taken up for admission and order for admission and advertisement of the petition came to be passed. On or about 24.03.2013 when Advocate Kantak checked the weekly board for next week and the status of Company Petition No. 20 of 2012 on the internet website of the High Court, it was revealed that the said company petition was listed for admission on 21.03.2013 and the order admitting and advertising the petition in terms of the Companies (Court) Rules, came to be passed. On 25.03.2013 the applicant sought information as to the date and time in the said additional board on which the company petition was displayed. The said information was given to the applicant only on 09.04.2013. The applicant thus has made efforts to move this Court as early as possible. The petition was heard and admitted ex parte on account of the circumstances which were beyond the control of the applicant. The order admitting the petition would prejudicially affect the company and its share holders. The applicant has substantial defense and therefore there are good and sufficient grounds for recalling th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt has filed affidavit-in-sur-rejoinder. 7. Shri. Padiyar, learned counsel for the applicant, submitted that the applicant has a strong case for rejecting the petition summarily and that sufficient cause for not appearing in the matter on 23.03.2013 has been given by the applicant in the present application. He submitted that an admission order can be recalled. He pointed out that in the present matter there is direct order of admission without giving opportunity to the other party. Learned counsel submitted that if the present recall application is allowed and after hearing the parties the company petition is again admitted, the applicant shall bear all the costs of advertisement of the petition. He submitted that if the applicant succeeds in showing that there is absolutely no merit in the petition, nothing will remain. He therefore submitted that no prejudice would be caused to the other side. Learned counsel urged that non appearance was not deliberate and the applicant will not gain anything by not appearing in the matter. He submitted that even after winding up, the said order of winding up can be recalled. Learned counsel relied upon the following authorities : (1) Ani ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of 'Anil Kumar Sachdev' (supra), by an ex parte order the petition for winding up was admitted and notice of admission was published in two newspapers as well as in official gazette. By further ex parte order dated 22.11.1976, the respondent-company was ordered to be wound up. Even the Official Liquidator had taken charge of the affairs of the company. The learned Single Judge of the High Court of Delhi held that even in the above facts of the matter, an application for seeking to set aside the winding up order was maintainable. However, in the above case, the said company petition had been earlier admitted and notice of admission had also been published in two newspapers as well as in the official gazette. But only the winding up order was sought to be set aside. The order of admission was not set aside in the above case, nor was sought to be set aside. In the present case, the petition has been already advertised, as per the Companies (Court) Rules. Hence the above judgment cannot help the applicant in any manner. 11. In the case of Kerala State Industrial Development Corpn. Ltd. (supra), learned Single Judge of the Kerala High Court has observed thus : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h admission and issuing the advertisement. (See National Conduits P. Ltd. v. S.S. Arora [1967] 37 Comp Cas 786 (SC), George v. Alhimaltam Rubber Co. Ltd. [1965] 35 Comp Cas 17 (Ker) and Rind Overseas (P.) Ltd. v. Raghunath Prasad Jhunjhunwalla, [1976] 46 Comp Cas 91 (SC)]. 12. In the case of Kerala State Industrial Development Corpn. Ltd. (supra), though the petition was admitted, however, the same was not published in the news papers and official gazette and thus was not yet advertised. The question was whether the advertisement should be made. In the present case, the statutory notice under Sections 433 and 434 of the Companies Act was duly received by the applicant. On 14/12/2012, Advocate Ms. R. Kantak had appeared on behalf of the applicant and had sought time of four weeks to file reply. Time was granted to the applicant. However, on 21.03.2013, when the matter was called out, none appeared in the said Company Petition No. 20/2012, on behalf of the applicant. This Court held that a perusal of the petition discloses that prima facie the Company (applicant) owes an amount of ₹ 80.00 lakhs to the petitioner. The petition was therefore admitted and advertisement of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supra), by order dated 16th September 2010, the petition for winding up was admitted after hearing learned Counsel for both the parties. But the publication of the notice was deferred for a period of two weeks to enable the respondent to pay/deposit in the Court the sum of ₹ 7,84,000/-. The Company Application No. 4 of 2011 was filed by the respondent to recall the order dated 16th September 2010 admitting the Company Petition. What had happened was that the condition imposed in the order dated 16th September 2010 was fulfilled since the respondent had deposited the said sum of ₹ 7,84,000/- and the applicant had filed a Regular Civil Suit No. 325/2010/III in the Court of Additional Civil Judge Senior Division, which suit was pending. By order dated 7th April, 2011, this Court observed that the interest of justice would be served if the said amount of ₹ 7,84,000/- is transferred to the Court of Additional Civil Judge Senior Division, Margao to the credit of Regular Civil Suit No. 325/2010/III. It was found that the order of admission had served the purpose and the said order could not be implemented because no advertisement could be published. Hence in the peculiar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be made by informing the Court that they intend to file an application for recalling the ex parte order of admission. The applicant has stated that on 25.03.2013, the applicant sought for the information as to the date and time in the additional board on which the Company Petition was displayed and that such information was received by the applicant on 09.04.2013. From 09.04.2013 till 18.04.2013, the applicant had ample time to move the present application or at least an application to request the Court to direct that the advertisement may not be made as they were to file an applicant to recall the order of admission. As already stated above, the advertisement was done on 19.04.2013.The applicant filed the present application on 25.04.2013. There is no sufficient cause shown for such delay. 18. The applicant has, otherwise, made various averments on merits running in at least 22 pages and has also produced various documents. In answer to that, the respondent has filed a detailed reply containing at least about eight pages on merits. The applicant has filed affidavit-in-rejoinder of 14 pages and one more document along with the same. The respondent has filed affidavit-in-sur-rej ..... X X X X Extracts X X X X X X X X Extracts X X X X
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