IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.2319 OF 2007 M/s.Temptation Foods Limited ...Petitioner Versus Appellate Authority for Industrial & Financial Reconstruction & Ors. ...Respondents ...... Mr.Rahul Chitnis with Mr.Vishal Maheshwari i/b Khaitan & Co. for Petitioner. None for Respondents. ...... CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. FEBRUARY 15, 2008. FEBRUARY 15, 2008. FEBRUARY 15, 2008. P.C. P.C. P.C. 1. None appears for the Respondents though served. In fact, Respondents were served in the first instance in terms of order dated 30th October 2007. As none appeared for the Respondents inspite of service when the matter was made returnable on 11th December 2007, this Court directed issuance of fresh notice to the Respondents to indicate that the matter will be finally disposed of at notice : 2 : stage. Once again, the Petitioner has served all the Respondents as is mentioned in the affidavit of service. As aforesaid, none appears for the Respondents though served. 2. In the circumstances, I shall proceed with the hearing of the proceedings for final disposal in terms of the order dated December 11, 2007. 3. The principal question that needs to be addressed in the present Petition is in relation to the order passed by the BIFR against Respondent Company taking the view that all possibilities of rehabilitating the Company were explored and the Board was of the view that the Respondent Company was not likely to make its network exceed the accumulated losses within the reasonable time while meeting all its financial obligations. As a result, the Board opined that the Company is not viable on long term basis and hence, it was just and expedient to wind up the Company in public interest. This decision was challenged by the Petitioner Company before the AAIFR which appeal, however, was dismissed for default on 4th August : 3 : 2005. 4. The Petitioner has approached this Court by way of present Writ Petition filed on 29th September 2007 and would assert that the financial position of the Petitioner Company has substantially improved and the Petitioner Company has turned positive. On this assertion, it is argued that the order passed by the BIFR which was incidentally confirmed by the AAIFR deserves to be set-aside. 5. Insofar as the order passed by the AAIFR is concerned, I have no hesitation in taking the view that the Petitioner is justified in pointing out that due to circumstances beyond their control, it was not possible to appear before the AAIFR on the appointed date as a result thereof, their Appeal came to be dismissed for default. That being sufficient cause, the order passed by the AAIFR dated 4th August 2005 will have to be set-aside. : 4 : 6. The Petitioner, however, prays for further relief of even setting-aside the order of the BIFR dated 20th May 2003 on the assertion that in view of the subsequent developments, the Petitioner Company has turned positive. In my opinion, that aspect will have to be examined by the AAIFR in the first instance being factual position, which requires to be scrutinised before forming any opinion in that behalf. 7. In the circumstances, I am disposed to set-aside the order passed by the AAIFR and restore the Appeal proceedings before the AAIFR being Nos.408 of 2003 and 426 of 2003, which Appeals will be restored to their original numbers to be proceeded on its own merits in accordance with law. 8. The Petitioners will be free to produce such material as may be advised to persuade the AAIFR that the Petitioner Company has turned positive and that the order of BIFR dated 20th May 2003 deserves to be set aside forthwith. All questions in that behalf are left open to be decided by the AAIFR on its own merits. : 5 : 9. Petition disposed of on the above terms. A.M.KHANWILKAR, J.