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 Suit No.1212 of 1989. Suit No.1212 of 1989. Suit No.1212 of 1989. Somatrao SRL Societa Maritime Transports ..Plaintiff versus Atlantic Shipping Pvt. Limited & Others ..Defendants Mr.Rahul Narichania i/b. Mulla & Mulla for the Plaintiff Mr.Ajmerwala i/b. Ajmewala & Co. for the Defendant No.1 Ms. Gayatri Sharma i/b. S.K.Srivastav for the Defendant No.2 Coram : V.C.Daga, J. Coram : V.C.Daga, J. Coram : V.C.Daga, J. Dated : 1st February, 2008 Dated : 1st February, 2008 Dated : 1st February, 2008 P.C. 1. Heard. 2. Perused the record. The defendant Nos.1 and 5 to 7 have filed affidavit dated 21.11.2007 stating therein that the plaintiff company has ceased to exist since it was wound up w.e.f.12.11.1988. He further submits that the name of the company was cancelled from the register of the Registrar under the Companies Act on 30.1.1998 pursuant to its voluntary winding which commenced by 24.7.1991. The document evidencing cancellation of name is produced on record along with the affidavit. -2- 3. The learned counsel for the defendants thus submits that the plaintiff company is not in existence. As such at the instance of the company which is not at all in existence cannot prosecute the suit. The suit is thus liable to be disposed of as abated. 4. Per contra the learned counsel appearing for the plaintiff was served with the above affidavit. The suit was adjourned from time to time to enable him to take instructions from the plaintiff. Firstly it was adjourned on 22.11.2007, thereafter on 7.12.2007, then on 20.12.2007, 10.1.2007 and 15.1.2008 to enable the plaintiff to file to file counter affidavit and to challenge the statement made by the defendant in the affidavit dated 21.11.2007. 5. The learned counsel appearing for the plaintiff expressed his inability to file counter affidavit for want of establishing contact with the plaintiff company. The learned counsel left with no alternative submits that the plaintiff company is in liquidation and the Official Liquidator has been -3- appointed as Liquidator on behalf of the company. It is thus submitted by the counsel for the plaintiff that the attorneys are unable to contact the plaintiff as well as the Liquidator. However, no contact could be established with the plaintiff or the liquidator. 6. In the aforesaid view of the matter, there is no material on record to disbelieve the statement made by the defendant in their affidavit dated 21.11.2007. 7. On the basis of the material produced, supported by the affidavit, I am prima facie satisfied that the plaintiff company does not exist as on date, may be because of the voluntary winding up. The suit cannot proceed against the defendant for want of existence of plaintiff. The suit is thus liable to be dismissed as abated. 8. During the course of hearing, it is brought to my notice that the order dated 17.10.1989 was passed on the Notice of Motion taken out by the defendant No.1 for securing amount of cost which the -4- defendants may incur in defending this suit. Pursuant to the order of this Court, the plaintiff has furnished the bank guarantee to the satisfaction to the Prothonotary & Senior Master in the sum of Rs.50,000/- to secure amount of costs. 9. The learned Counsel who appeared for the defendant submits that looking to the fact that the defendant was dragged in the litigation the defendant should be saddled with heavy cost. This prayer is opposed by the learned Counsel appearing for the plaintiff contending that the defendant has not even filed their written statement. In the circumstances, the cost should be awarded. 10. Having heard and considered the rival contention, it is true that the plaintiff was required to file the suit and that the defendant was required to engage advocate. It is also true that no written statement is filed by the defendant. In the circumstances, taking overall view of the matter, the cost to be paid by the plaintiff to the defendant is quantified in the sum of Rs.10,000/-. 11. The Prothonotary & Senior Master is -5- permitted to invoke the bank guarantee to the extent of Rs.10,000/- only (Rupees Ten Thousand Only). The amount of cost should be paid to the defendant by drawing a payee’s A/c cheque in favour of the defendant. It shall be open for the Prothonotary to return the bank guarantee with necessary endorsement for cancellation thereof after securing Rs.10,000/- from the bank. 11. In the result the suit is dismissed in terms of this order with costs as quantified herein. (V.C.Daga, J.) (V.C.Daga, J.) (V.C.Daga, J.)