1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CONTEMPT PETITION NO.42 OF 2009 IN APPEAL NO.454 OF 2008 IN COMPANY PETITION NO.323 OF 2008 Sharda Synthetics Pvt. Ltd .. Petitioner versus Sun Industries & Ors. .. Defendants Mr.Anil Agarwal for the petitioner. Ms.Smita Sawant i/by Dave & Co for the defendants. CORAM : A.S.OKA, J. DATE : 12th November 2009. P.C: . Heard learned counsel appearing for the petitioner and the learned counsel appearing for the respondents. The breach alleged is of order dated 3rd January 2009 passed by a Division Bench of this Court in Appeal No.454 of 2008 arising out of the order passed in Company Petition No.323 of 2008. 2. An order was passed in winding up petition against the petitioner which was challenged by preferring the aforesaid appeal. On 12th January 2009, by consent of the learned counsel appearing for the parties, the appeal was adjourned to 16th February 2009. A direction was issued by the Division Bench that in the meantime advertisement will not be published. It is pointed out that thereafter on 16th February 2009, the ad-interim relief 2 granted by the Division Bench was continued till 13th April 2009. The allegation is that in breach of the order dated 12th January 2009 the respondents advertised the company on 16th January 2009. 3. The learned counsel appearing for the petitioner pointed out that the advertisement published on 16th January 2009 is clearly in breach of the order dated 12th January 2009. He pointed out that ad-interim order passed on 12th January 2009 operated for about period of seven months. He pointed out the stand taken by the respondents in the reply to notice issued that a junior advocate representing the respondents did not hear in the Court that there was an ad-interim order passed and he simply heard that the appeal was adjourned to 16th February 2009. He pointed out that the said stand is factually incorrect as stated by him in the rejoinder dated 1st April 2009 in which it is pointed out that the prayer for ad-interim relief made by the petitioner was opposed by the learned advocate and therefore, now ignorance cannot be pleaded by the learned advocate about the order passed by the Division Bench. 4. The learned counsel appearing for the respondents tendered affidavit of Mr.Navinchandra J. Shah. In the said affidavit, an unconditional apology have been tendered by Mr.Navinchandra J. Shah in paragraph 2 thereof. An affidavit of Mr.Vivek R. Datta, advocate has been annexed to the said affidavit. In the said affidavit the said advocate has tendered unconditional apology and he has stated what according to him transpired in the Court. 3 The learned counsel appearing for the respondents submitted that in view of the apology tendered by the respondents, no action be initiated against the respondents. 5. I have considered the submissions. In paragraphs 2 and 3 of the affidavit of Mr.Vivek Datta, advocate stated thus: “2. I say that it was my first day with Dave & Co on 12/01/2009, I was not aware of the facts of the above case on 12/01/2009. I was instructed by my senior advocate to appear in the matter on 12/01/2009 before the Hon’ble Court to take adjournment as my senior advocate was in personal difficulty on 12/01/2009 and was unable to appear before the Hon’ble Court. 3. I say that I was nervous on that day as it was my first day with Dave & Co and adding to it I was appearing before the Hon’ble the Chief Justice. I say that on 12/01/2009 when I appeared before the Hon’ble Court I failed to hear of any order has been passed in the above appeal. As I was not aware of any order has been passed I informed the office next date of the matter and thereafter the office proceeded for advertisement of the petition.” 6. In the 1st paragraph of the affidavit he has tendered unconditional apology. The advocate has categorically stated that he was nervous on that day as it was his first day with M/s.Dave & Company and in addition to that he was appearing before the Court presided over by Hon’ble the Chief Justice. He has stated that he failed to hear of any ad-interim order passed in the appeal on 12th January 2009 and therefore he informed the office of the next date fixed in the matter. I find that the explanation offered by Mr.Vivek R.Datta deserves to be accepted. He has tendered unconditional 4 apology which also deserves to be accepted. Thus, according to the said advocate he did not inform his senior of any ad-interim order. Therefore, the respondents were not made aware of the order. As the said factual assertions made by the advocate are accepted, it is obvious that no action can be initiated against the respondents, either under the Contempt of Courts Act 1971 or under Article 215 of the Constitution of India as the respondents were not aware of the order dated 12th January 2009 putting a restraint on publication. 7. The learned counsel appearing for the petitioner makes a grievance that the respondents have taken no steps to purge contempt. It must be noted here that the appeal before Division Bench preferred by the petitioner was withdrawn with liberty to file a petition for review of the order passed in company petition. It is stated that the review petition has been dismissed and an appeal is pending before the Division Bench. 8. The apology tendered by the contemnors and the said advocate is accepted. Under the circumstances, no further action is called for. Contempt petition is disposed of. (A.S.OKA,J)