TMI Blog2021 (10) TMI 995X X X X Extracts X X X X X X X X Extracts X X X X ..... , which warrants any interference - Appeal disposed off. - APPEAL (L) NO. 12210 OF 2021 IN COMPANY APPLICATION NO. 4 OF 2021 WITH INTERIM APPLICATION (L) NO. 12217 OF 2021 IN APPEAL (L) NO. 12273 OF 2021 IN COMPANY APPLICATION NO. 3 OF 2021 INTERIM APPLICATION (L) NO. 12286 IN APPEAL (L) NO. 12273 OF 2021 - - - Dated:- 21-10-2021 - S.J. KATHAWALLA AND MILIND N. JADHAV, JJ. Shri Haresh Jagtiani, Senior Advocate alongwith Shri Yashpal Jain and Ms. Aditi Harsha for the Appellants. Shri Kevic Setalwad, Senior Advocate alongwith Shri Malcolm Siganporia, Shri Hormuz Mehta and Shri Ahsan Allana instructed by J. Sagar Associates for Respondent Nos.1 and 2 in Appeal (L) No.12210 of 2021. Shri Vikram Nankani, Senior Advocate alongwith Shri Malcolm Siganporia, Shri Hormuz Mehta and Shri Ahsan Allana instructed by J. Sagar Associates for Respondent Nos.1 and 2 in Appeal (L) No. 12273 of 2021. Shri Shanay Shah alongwith Ms. Monisha Mane Bhangale and Ms. Warisha Parkar instructed by Parinam Law Associates for Respondent No.4 in both the above Appeals. ORAL JUDGMENT (PER: S.J. KATHAWALLA MILIND N. JADHAV, JJ.): Appeal (L) No. 12210 of 2021 1. The presen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Company Application (L) No. 3 of 2017 be removed on or before 27th September 2017, failing which the said application would stand rejected under Rule 986 of the Bombay High Court (Original Side) Rules, 1980. Since the objections were not removed, Company Application (L) No. 3 of 2017 stood dismissed for want of removal of office objections. On 11th January 2018, an order came to be passed by the Learned Single Judge directing Respondent No. 1 to take steps to restore Company Application (L) No. 3 of 2017 within a period of one week, failing which the said Company Appeal No.102 of 2015 would stand dismissed. On 7th February 2018, the matter was listed at the request of Respondent No. 1, at which time, the Learned Single Judge in view of the self-operative order dated 11th January 2018, dismissed Company Appeal No.102 of 2015 filed by Respondent Nos. 1 and 2 under Section 10(F) of the Act. 7. A Recall Application being Company Application (L) No. 5 of 2018 was filed by Respondent No. 1, which was dismissed by the Learned Single Judge on 26th June 2018. However, by consent of the parties i.e. the Appellant and Respondent Nos. 1 and 2, the order dated 26th June 2018 was recalled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (e) the recall of the order dated 26th June 2018 was in a peculiar circumstance and that order can never have the effect of obliterating the false statements uttered by Respondent No. 2; (f) the falsehoods of Respondent No. 2 continued even when Company Application No. 1 of 2021 was filed by Respondent No. 2 as once again Respondent No. 2 contended that he did not have knowledge about the whereabouts of the legal heirs of the deceased, which was ascribed to a period prior to 19th May 2017; (g) Respondent Nos. 1 and 2 can hardly contend that the Appellant is not the only proper and worthy successor to prosecute/defend litigation by virtue of him being the executor of the last Will of the deceased; and (h) In other proceedings filed inter se between the parties, the Appellant has been impleaded in place of the deceased and this fact ought to have been considered by the Learned Single Judge; and (i) the Impugned Order is flawed and legally perverse as the Learned Single Judge has restored the Section 10(F) Appeal, which abated on 19th April 2017. 11. On the other hand, Shri Setalvad, Learned Senior Advocate for Respondent Nos. 1 and 2, contended that: (a) t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereafter, the Learned Single Judge in paragraph 6 of the Impugned Order specifically noted the contentions urged by Shri Haresh Jagtiani and held as under : 6. I have to note that Mr. Jagtiani appeared on behalf of one Chetan Dalal, who has filed an intervention application bearing Company Application (L) No.4 of 2019 in the present Company Application No.1 of 2021. Mr. Jagtiani submitted that affidavit in support of this application contained all lies and the court was being misled into passing the order. In my view, restoration application is between applicant and the court and the court is entitled to exercise its discretion. No third party can have a say in that. At the same time, if, Mr. Jagtiani s client wishes to take out an intervention application in the appeal, they may do so, if so advised, and he may raise all points in the application including his client s allegations that the affidavit in support to Company Application No.1 of 2021 contained all lies and seek dismissal of the appeal and the court will consider that application on its own merits including Mr. Setalvad s contentions whether any third party can intervene in an appeal filed under Section 10F of Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed by the Appellant. 19. Both parties in their Written Submissions have referred to certain judgements, which in our view are settled position in law in the facts and circumstances in which they were passed. In the peculiar facts and circumstances of the present case, we are of the view that there is nothing perverse in the Impugned Order, which warrants any interference. The Appellant's rights are sufficiently safeguarded in view of the directions passed above and in paragraph 6 of the Impugned Order. 20. Accordingly, we see no reason to interfere with the Impugned Order and the Appeal is disposed of as with no order to costs. 21. Rights and contentions of the parties are expressly kept open. Appeal (L) No. 12273 of 2021 22. In view of the above Order, nothing survives in this Appeal and the directions contained above shall also be read as having passed in this Appeal. 23. We are informed that Respondent Nos. 1 and 2 have filed Interim Application (L) No.15776 of 2021 in Company Application (L) No. 4 of 2017 for carrying out appropriate amendments since the form of Company Application (L) No. 4 of 2017 warranted such amendments. It would be apposite that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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