: 1 : SD IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION COMPANY APPLICATION NO.218 OF 2008 COMPANY APPLICATION NO.218 OF 2008 COMPANY APPLICATION NO.218 OF 2008 WITH WITH WITH COMPANY APPLICATION NO.386 OF 2008 COMPANY APPLICATION NO.386 OF 2008 COMPANY APPLICATION NO.386 OF 2008 IN IN IN COMPANY PETITION NO.200 OF 2007 COMPANY PETITION NO.200 OF 2007 COMPANY PETITION NO.200 OF 2007 Jiangtsu Goutai International Group . Hua Tai Import & Export Company, China ...Applicant V/s. Manav Drugs Pvt. Ltd., Mumbai ...Respondent Ms.Aarti Sathe, Advocate, i/b. Madhur Baya, for the Applicant. Mr.Niranjan Waghela, Advocate, i/b. Pandya & Co., for the Respondent. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. DATE : 10TH APRIL, 2008. DATE : 10TH APRIL, 2008. DATE : 10TH APRIL, 2008. P.C.: P.C.: P.C.: 1. Heard learned Counsel appearing for the applicant (petitioner in the Company Petition) in support of these two Applications. I have heard the learned Counsel appearing for the respondent (respondent in the Company Petition). 2. When the Company Petition No.200 of 2007 appeared before this Court on 19th December, 2007, the petitioner was granted time to carry out amendment in terms of liberty granted under order dated 5th December, 2007. It was directed that if the amendment : 2 : is not carried out within a period of three weeks, the Petition will stand dismissed for non-prosecution without further reference to the Court. 3. The petitioner could not carry out amendment within the stipulated time. Therefore, Company Application No.218 of 2008 was taken out by the petitioner for condonation of delay and for extension of time to carry out amendment. When the said Company Application No.218 of 2008 came up before this Court on 21st February, 2008, it was brought to the notice of this Court that the conditional order dated 19th December, 2007 in the Company Petition No.200 of 2007 had become operative and the Company Petition itself stood dismissed. Therefore, this Court granted time to the petitioner to take steps for restoration of the main Company Petition. Accordingly, Company Application No.386 of 2008 has been taken out by the petitioner. 4. The learned Counsel appearing for the petitioner has invited my attention to the affidavit of Mr.Jayesh Tolia, the constituted attorney of the petitioner. She submitted that the said affidavit as well as the affidavit in support filed by the same person in Company Application No.218 of 2008 : 3 : sufficiently explain the reasons for delay in carrying out amendment. 5. The learned Counsel appearing for the respondent opposed the said applications by pointing out that there has been persistent default on the part of the petitioner. He submitted that the power of attorney on which reliance has been placed in both the Company Applications has not been executed before the Notary public. He submitted that order dated 19th December, 2007 is a self-operative order and therefore the Court has become functus officio and order of restoration cannot be passed. 6. I have carefully considered the submissions. The last submission made by the learned Counsel for the respondent that as the order dated 19th December, 2007 is a self-operative conditional order, the Court has become functus officio is completely fallacious. There are more than sufficient powers vesting in the Court apart from the inherent power under Rule 9 of the Companies (Court) Rules, 1959. Such conditional orders are passed to ensure that procedural requirements are complied with by the parties to the litigation and therefore there is always a power vesting in the Court to set aside or recall such : 4 : orders if a case is made out for doing the same. 7. I have perused the affidavits in support of both the applications filed by one Mr.Jayesh Tolia. Adequate reasons have been set out in the affidavits for not complying with the earlier order of carrying out the amendment. The Company Petition has been dismissed for non-prosecution on account of a procedural lapse. Therefore, one opportunity deserves to be granted to the petitioner to prosecute the Company Petition. However the respondent will have to be compensated by ordering payment of substantial costs. The amount of costs collectively payable in these two applications is quantified at Rs.15,000/-. 8. Hence, I pass the following order:- "O R D E R" "O R D E R" "O R D E R" (a). Company Application No.386 of 2008 is made absolute in terms of prayer clauses (a) and (b). (b). Company Application No.218 of 2008 is made absolute in terms of prayer clauses (a) and (b) subject to condition that amendment in : 5 : terms of order dated 19th December, 2007 will be carried out by the petitioner within a period of three weeks from today, failing which the order of dismissal of the Company Petition will stand. (c). The petitioner will pay the total amount of Rs.15,000/- by way of costs to the respondent. Payment of costs will be made within a period of six weeks from today. Payment of costs will be condition precedent. (d). If compliance is made, Company Petition shall be placed for admission on 12th June, 2008. [ABHAY S. OKA, J.] [ABHAY S. OKA, J.] [ABHAY S. OKA, J.]