A S BHATTY Vs. K L GAMBHIR

JUDGEMENT

(1.) An ex-parte order was passed on 4.11.77 in C.P. No. 15 of 1977. The present application has been moved under Order 9 rule 13 and Section 151 of the Civil Procedure Code . Code of Civil Procedure and also u/s 5 of the Limitation Act for setting aside that ex-parte order. The allegation in the application is that the notices served on the applicants were incomplete in respect of the date of hearing and only later the applicants learnt of the disposal of the petition by inspection of the record. It is claimed that the petitioner had no informatioin regarding the contents of the petition because no copy of the petition was enclosed and hence Rule 26 of the Companies (Court) Rules, 1959, had been infringed. It is said that though the notice stated that a copy of the petition is enclosed, actually no copy was enclosed. It is claimed that the affidavit of service is not a valid affidavit and in not is the prescribed form and is not correct. It is claimed that the petition should have been dismissed for want of service or some other order should have been passed. It is said that there is sufficient cause for setting aside that order.

(2.) It appears that the applicants were aware of the petition and were trying to negotiate a settlement with the petitioner. Certain terms are also stated to have been agreed between the parties and the respondents did not appear in the case because the petition was likely to be settled outside the Courts. On this impression, the respondents did not appear to contest the matter. It is further stated that Shrimati Promila Gambir, who has been held to be an improperly appointed director was appointed properly and an extract from the Minutes is enclosed. The original minutes Books have also been perused by me. .

(3.) Although the ex-parte order was passed on 4.11.77 the present application was filed on 20.12.77. In the reply on behalf of the petitioner, it is claimed that the ex-parte order was passed on 13.5.77 and the application was hopelessly barred by time. It is pointed out that there were several adjournments till the final order was passed on4.11.77. It is further stated that Mr. V. V. Shastri, Advocate had been appointed Commissioner to make an inventory of the account books and at that time the order was shown to Shri K. L. Gambhir, Managing Director of the company, and hence, the respondents had notice of the contents of the case. It is claimed that there is no explanation for the delay and there is no ground for setting aside the ex-parte order. It is further denied that there was an agreement to settle the matter outside the Court. On the other band, it is claimed that a copy of the petition was given to Shri K.L. Gambhir, who did not like to contest the matter and hence he did not put in appearance. It is denied that there was any fraud and it is further denied that the appointment of Shrimati Promilla Gambhir was in accordance with law. It is pointed out that the said Shrimati Promilla Gambhir has been held to be not a director and this order could not be varied.