1 appl521.10.sxw ssm IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL (L) NO. 521 OF 2010 IN REPORT OF THE OFFICIAL ASSIGNEE NO. 58 OF 2010 IN INSOLVENCY PETITION NO. 46 OF 2002 Krystal Stone Exports Ltd. .....Appellants Vs. Ghisalal C. Shah & Ors. ......Respondents Mr. S.A. Tawate for the Appellants. Mr. K.P. Jain i/by Ms. Nisha Parmar for Respondent No.2. CORAM : D.K. DESHMUKH AND ANOOP V. MOHTA, JJ. DATE : 8th MARCH, 2011. P.C.: 1 Present Appeal is filed against an order passed by the learned Single Judge of this Court. The order is dated 15th June, 2010. The order reads as under:- 2 appl521.10.sxw ssm “1. The Official Assignee’s Report is made absolute in terms of prayer (a). Krystal Stones Export Ltd. shall submit its claim within eight weeks from today. Further until further orders, the articles shall remain in the said premises. 2. The Official Assignee’s Report is accordingly disposed of.” 2 The only order made against the Appellant is that the Appellant has been directed to submit its claim within a period of eight weeks. The nature of claim that the Appellant is to submit becomes clear from paragraph Nos. 5 and 6 of the report submitted by the Official Assignee which read as under:- “5. The Official Assignee submits that the Applicant Company viz. Krystal Stone exports Ltd., for the first time have claimed over the moveables/ articles lying at said flat No.305, Blase view A, Co-operative Housing Society, Amboli, Andheri (W), Mumbai -400 058 in their affidavit in support of Notice of Motion No. 67 of 2009. 6. The Official Assignee submits the said applicant company be directed to file in Official assignee’s office their affidavit of claim in respect of the moveables/ articles alleged to have been belonging to them and prove the same by producing documentary evidence in support of the said articles.” 3 It is thus clear that because the Appellant was claiming that its movable articles are lying in flat No. 305, the Official Assignee and the Court wanted the Appellant to make a claim regarding ownership of 3 appl521.10.sxw ssm the Articles and to prove that the Articles in relation to which the claim is made are owned by the Company. By no stretch of imagination, this order can be said to be adversed to the interest of the Appellant. In fact, the order is in favour of the Appellant because that order gives an opportunity to the Appellant to prove its claim that certain articles are lying in the premises which are owned by the Company. It is thus, clear that this Appeal has unnecessarily been filed and therefore, there is no substance in the Appeal and is liable to be rejected. Normally, we would have stopped here. But what has been pointed out by the learned counsel appearing for Official Assignee is really disturbing. The learned counsel points out that the same Advocate Mr. S.A. Tawate appears for the Company as well as for the insolvent on different occasions either appearing on behalf of the Company or the insolvent. Allegations are made, not only against the Official Assignee but the Judges of this Court. The learned counsel pointed out to us an order dated 21st March, 2006 passed in the Notice of Motion No. 53 of 2006, wherein allegations was made that this Court pressurized the Insolvent No.1 to give an undertaking. We have been pointed out that the complaints have been made from time to time against Official Assignee which are found to be without any substance. Even this Appeal appears to have been filed to delay 4 appl521.10.sxw ssm the proceedings against the insolvent. It appears that in so far as the premises are concerned, there were diversed claims made by the Company and the insolvent. We do not really know whether Advocate Mr. S.A. Tawate was justified in appearing in the same proceedings for the insolvent and the Company who appears to have made contradictory claims in relation to the premises. Really speaking, it is for the Bar Council to make inquiry and find out whether the concerned Advocate is guilty of any misconduct. We leave it to the Bar Council to make an inquiry and pass the order. However, this Appeal is unnecessarily filed and filing such appeal results in abuse of the process of the court. The Motion and Appeal are rejected with exemplary costs. Appellant is directed to pay as and by way of costs of Motion and Appeal Rs.25,000/- to the Official Assignee. 4 The payment of costs is a condition precedent to the Appellant filing claims in relation to the ownership of articles, pursuant to the order impugned in the Appeal. At this stage, the request made by the learned counsel for the Appellant to stay the effect and operation of this order, the request is rejected. 5 Because this appeal was unnecessarily filed, the Official Assignee 5 appl521.10.sxw ssm is required to engage a lawyer to defend the Appeal. Official Assignee is therefore, permitted to pay the fees of the advocate from the estate of the insolvent, as per leave taken from the insolvency Judge. 6 Office to forward copy of this order to the Bar Council for necessary action. (ANOOP V. MOHTA, J.) (D.K. DESHMUKH, J.)