VIRAT ENGINEERING PRIVATE LMITED Vs. HARLEYSTREET PHARMACEUTICALS LIMITED

JUDGEMENT

(1.) The Original petitioner-Virat Engineering Private Ltd. has taken out this Judges Summons with a prayer that the order dated 31.1.1995 passed by this Court in Company Petition No. 51 of 1990 dismissing the petition under Rule 31 of Company Court Rules be reviewed and the company petition be refixed for hearing on merits. It is also simultaneously prayed that any other and further relief as this Court deems fit, just and proper also may be granted.

(2.) This judges summons is taken by Mrs. Soparkar learned counsel for the applicant and supported by the affidavit of her clerk Mr. Yogesh R. Patel. The copy of the judges summons was served to Mr. A.C. Gandhi learned counsel for the opponent company. For the sake of convenience and to appreciate the rival contentions raised before this Court, the order sought to be reviewed by the applicant (ori. petitioner) is reproduced as under:

(3.) The applicant had filed Company Petition No. 51 of 1999 seeking winding up of the opponent company and the same was admitted by this Court vide order dated 15.2.1993. Undisputedly, the opponent company was desirous to prefer an appeal against the order of admission, the publication of advertisement was deferred for four weeks. The appeal preferred by the opponent company against the order of admission was dismissed by the Division Bench dealing with the OJ appeals vide order dated 15.3.1993 and the date of the hearing of the winding up petition was fixed on 12.7.1993. As per applicant it got petition advertised in "Times of India" and "Sandesh" to the effect that the petition is ordered to be heard on 12.7.1993 in compliance of the order passed on the day of admission. It is not a matter of dispute that the affidavit of publication of advertisement was not filed in this Court as provided under the Rules ( Rule 31). The affidavit filed in support of the application says that "it is not possible at this stage to state the exact reason for delay, however, the reason appears to be that by that time, the applicant had shifted his office at Bombay inasmuch as the premises at which the applicant was situated namely Natraj Hotel was sold away to third party." The Company Petition No. 51 of 1990 was listed on the separate Board by the Registry along with other large number of matters on the ground that affidavit of publication was not filed with the Registry. The first part of the above referred order dated 31.1.1995 indicates that the Registry was directed by common order to notify on separate Board all the matters listed for final hearing where the petitioner had not taken trouble to get the matter advertised or to file affidavit as to the advertisement. It appears that this Court had offered a chance to comply with the direction as to the advertisement of the matter. There was no compliance of the direction as to the publication of notice and filing of the affidavit, the Court was inclined to dismiss the matter for want of prosecution in reference to Rule-31 of the Company Court Rules.