1 jpc/- IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION COMPANY APPLICATION NO. 203 OF 2010 IN COMPANY PETITION NO. 3 OF 2000 Dr. K. D. Mehru .. Petitioner Versus M/s Cosmos Brands Distributors Pvt. Ltd. .. Applicant/Respondent Mr. J. J. Bhatt i/by Mahesh Shah & Co. for the Applicant/respondent Mr. Swapnil Dhumal, Senor Executive Accountant of the Respondent Present. CORAM : S. J. KATHAWALLA, J. DATE : 15th April, 2010 P.C.: 1. This company application is filed by the Respondent Company for setting aside the order dated 5th March, 2010 passed by this Court, admitting the above company petition. 2. It is stated in the affidavit in support of the Company Application that the Managing Director of the Company was residing out of the country when the service of the petition was effected. Thus, due to inadvertence, no one from the Company could remain present when the order came to be passed on 5th March, 2010. It is also stated that the Company has a very good case on merits and this order would not have been passed if the company had been represented at the time of passing the order. 2 3. As recorded in the order dated 5th March, 2010, the petitioner through his Advocate had served the notices dated 5th December, 2008 and 7th March, 2009, calling upon the Company to pay a sum of Rs. 36,94,425/- to the petitioner. The Company failed and neglected to respond to the said notices. The statutory notice dated 8th May, 2009 was admittedly served on the Company but the Company also failed and neglected to respond to the statutory notice. Thereafter the petition was filed and a copy thereof was served on the Company on 18th January, 2010. Upto 5th March, 2010, the Respondent company failed to engage an advocate or to appear before this Court through its representative. However, once the order dated 5th March, 2010 was forwarded to the Company, the Company which has not controverted the claim of the petitioner since 5th December, 2008, has immediately come to this Court for setting aside the said order. This conduct on the part of the company goes to show that the company had decided to ignore all the notices including the statutory notice as well as the Company petition until the order dated 5th March, 2010 was passed by this Court. The explanation now given that the Managing Director of the Company was residing abroad when the petition was served and due to inadvertence no one could represent the Company on 5th March, 2010 completely lacks bonafides and cannot be accepted more so because the company has not deemed fit to even explain why the three earlier notices including the statutory notice was ignored and not responded to by the Company. 3 4. Though the petition is already advertised in the newspapers as directed by this Court and despite such callous attitude and irresponsible behaviour on the part of the Company and its directors, only with a view to test the bonafides of the Company, this Court enquired with the learned Advocate appearing for the Company, whether the Company is willing to deposit a sum of Rs.36,94,425/- in this Court as a condition precedent to the hearing of the present Application. The learned Advocate appearing for the Company, on instructions, has submitted that the Respondent company is not in position to deposit the said amount of Rs. 36,94,425/- as suggested by this Court. Mr. Dhumal, Executive accountant of the Company who is present in Court, in a query raised by this Court, informed the Court that since its incorporation in the year 2002 the Company has not made any profits and is always in loss. He has expressed his inability to inform the Court as to the year when the last accounts were filed by the Company with the ROC. Such is the manner in which the affairs of the Company are conducted. 5. Under the circumstances no cause much less sufficient cause is made out for setting aside the order dated 5th March, 2010. 6. The Company Application is accordingly dismissed with costs. (S. J. KATHAWALLA, J.)