1 MSS 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 APPEAL NO. 277 OF 2008 IN SUIT NO. 263 OF 2007 M/s. INTER METALLCO PVT. LTD. APPELLANT Vs. K. MOHAN & CO. (EXPORTS) .. RESPONDENT Mr. V. M. Waghela for appellant Mr. F. Jariwala for respondent. CORAM:SMT.RANJANA DESAI & K. K. TATED, JJ. DATE: 13/10/2008 P.C. . In this appeal order dated 2/4/08 passed by learned Single Judge dismissing the suit for want of prosecution is under challenge. It appears that the plaintiffs are a Singapore based company. The plaintiff company has gone into liquidation in August, 2005. It was, therefore, necessary for the plaintiffs to obtain necessary permission to enable them to prosecute the present suit. Inasmuch as no steps in accordance with law to obtain the 2 permission were taken, by the impugned order learned Single Judge dismissed the suit for want of prosecution. 2. We have heard learned counsel appearing for the appellants. 3. Our attention is drawn to a letter dated 1/7/08 addressed to the Director of the appellants by the Official Receiver (Insolvensy and Public Trustees office), Government of Singapore. The letter indicates that necessary permission has now been granted to the appellants on the condition of the appellants furnishing indemnity and submitting a security deposit by way of Bankers Guarantee/Bank Draft. Learned counsel for the appellants has filed his own affidavit stating that the appellants have complied with necessary conditions. He submitted that considering the fact that the appellants have now been permitted to prosecute the suit in the interest of justice the impugned order be set aside. 4. We have also heard learned counsel for the respondent. Learned counsel for the respondent submitted that the company went in liquidation in 3 August, 2005. The appellant ought to have brought this fact to the notice of the court, which it did not do. Suit was on board on 7/1/07. Thereafter on several occasions the suit was appearing on board, however, the appellants never brought this fact to the notice of the court. It is only the defendants who brought the fact of liquidation of the appellant company to the notice of the court. Learned Counsel submitted that, therefore, fraud is committed on the court. He further submitted that the suit cannot be prosecuted by the appellants. It has to be prosecuted by the Official Liquidator. He also submitted that the issues of abatement and limitation are also involved in this case and, therefore, the appeal be dismissed. Learned counsel for the appellant is disputing the submissions made by learned counsel for the respondent. 5. We have on record affidavit dated 8/10/08 filed by Shri Vaghela, learned counsel for the appellants. In the affidavit Shri Vaghela has stated that the appellants have received permission to continue the suit in India through Navnitlal Navalal Shah as per letter dated 1/7/08. Copy of the said letter is annexed to the affidavit at 4 Exh.-A. It is further stated by Shri Vaghela that the appellants’ well wisher Shah Dinesh Bhagwandas has paid security deposit being 5000 Singapore dollars on 24/7/08 and he has obtained receipt on 7/10/08 by e-mail. Copy of the receipt is annexed to the affidavit at Exh.-B. Shri Vaghela has further stated that he has obtained clarification from Official Liquidator, Singapore on 7/10/08 which states that Official Liquidator Singapore does not require any Indemnity from Mr. Navnitlal Shah or any solvent third party. Copy of the said clarification is annexed to the affidavit at Ex.-D. Mr. Navnitlal Shah is duly constituted attorney of the appellants through whom the suit and the instant appeal are filed. In view of the affidavit of Shri Vaghela, in our opinion, since the appellant has now obtained necessary permission impugned order should be set aside in the interest of justice. However, considering the inconvenience caused to the respondent, appellant should be saddled with costs quantified at Rs.25,000/-. 6. Hence the following order: a). The impugned order dated 2/4/08 is set aside. The suit to proceed on the condition that the 5 appellant pays to the respondent costs quantified at Rs.25,000/-. Payment of costs shall be condition precedent to the restoration of the suit. Costs to be paid within a period of four weeks from today. b). All contentions of both sides are kept open. c). Appeal is disposed of in the aforestated terms. Needless to say that notice of motion is also disposed of. JUDGE JUDGE