: 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.429 OF 2008 COMPANY APPLICATION NO.429 OF 2008 COMPANY APPLICATION NO.429 OF 2008 IN IN IN COMPANY PETITION NO.10 OF 2008 COMPANY PETITION NO.10 OF 2008 COMPANY PETITION NO.10 OF 2008 Dhantex Polycott Pvt. Ltd., Mumbai ...Applicant V/s. Hareshwar Mansukhlal Upadhyay, Mumbai ...Respondent Mr.Ashish Kamat, Advocate, i/b. Avinash N. Joshi, for the Applicant. Mr.C.N. Mehta, Advocate, i/b. Naveen Chomal, for the Respondent. Mr.S. Ramakanta, Dy. Official Liquidator, present. 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 the learned Counsel appearing for the applicant and the learned Counsel appearing for the respondent. 2. The prayer in this Company Application is for condonation of delay as well as for setting aside the order dated 15th February, 2008 passed in Company Petition No.10 of 2008. The said Company Petition was filed by the respondent for winding up of the applicant-company. The learned Counsel appearing for the applicant pointed out that when the Company : 2 : Petition was listed for admission, the Advocate engaged by the applicant could not remain present and therefore the order dated 15th February, 2008 has been passed. His submission is that the applicant has a good defence on merits in the Company Petition. He has placed reliance on a decision of the Apex Court in the case of Rafiq and Anr. V/s. Munshilal and Anr. [AIR 1981 SC 1400]. 3. The learned Counsel appearing for the respondent opposed this Company Application by pointing out that after considering the averments made in the reply filed by the applicant to the Company Petition, this Court has passed the order dated 15th February, 2008 which is a conditional order providing that the Company Petition will stand admitted only if a sum of Rs.17,27,019/- is not deposited by the applicant in this Court within a period of six weeks from 15th February, 2008. It is submitted that as the order has been passed on merits, the applicant ought to have preferred an Appeal. He submitted that there is a gross delay in filing this application. He submitted that even if this Court is inclined to allow this application, the respondent be directed to deposit the requisite amount. : 3 : 4. I have considered the submissions. This is a case where the applicant had filed a reply to the Company Petition at the stage of admission. In paragraph No.5 of the affidavit in support filed by one Mr.Mithalal Shankarlal Shah, a Director of the applicant-company, it is stated that on 15th February, 2008, the Company Petition was placed for admission at Sr.No.87. At that time the Advocate’s clerk working for the applicant’s Advocate was present in the Court. He stated that when he reached the Court room at about 11:50 a.m., the Company Petition was already called out. The Advocate’s Clerk informed him that the board had suddenly collapsed. Therefore the Advocate’s clerk rushed to call the concerned Advocate who was arguing another matter in another Court room. 5. The applicant had engaged an Advocate who could not remain present possibly because the board collapsed and the admission matter at Sr.No.87 was called out around 11:50 a.m. The applicant cannot be allowed to suffer as his Advocate could not reach the Court when the Petition was called out for admission. 6. In view of what is stated in the affidavit and in view of the fact that a reply is already filed to the main Company Petition, an indulgence deserves to : 4 : be shown to the applicant by restoring the Company Petition. However, the applicant will have to pay costs to the respondents. 7. Hence, I pass the following order :- "O R D E R" "O R D E R" "O R D E R" (a). The Company Application is made absolute in terms of prayer clauses (a) and (b) subject to condition of the applicant paying costs of Rs.15,000/- to the respondent. The payment of costs will be the condition precedent and the amount of costs shall be paid within a period of four weeks from today. (b). It is made clear that if compliance is not made with the order passed regarding payment of costs within the stipulated period of four weeks, the order dated 15th February, 2008 will stand. (c). If compliance is made, the Company Petition shall be placed for admission on 5th June, 2008. : 5 : [ABHAY S. OKA, J.] [ABHAY S. OKA, J.] [ABHAY S. OKA, J.]