CA581-10 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION COMPANY APPLICATION NO.581 OF 2010 WITH COMPANY PETITION NO.527 OF 2001 Transport Corporation of India Ltd. .. Petitioner Versus Transport Corporation of India Ltd. .. Applicant and SUC Superchem Ltd. .. Respondent Mr.A.K.J.Panicker for applicant Mr.A.G.Damle for respondent Mr.T.Pandian, O.L. present CORAM : S.C.DHARMADHIKARI, J. DATE : 20 th January 2011 P.C.: 1] The company application seeks following reliefs:- “(a) That this Court be pleased to set aside the dismissal of the above company petition for non- compliance of the order dated 19th October, 2007 and the same may kindly be restored to file.” (b) That this Court be pleased to condone the delay CA581-10 2 in not serving the notice under rule 28 of the Company Court Rules, 1959 upon the respondent and the time for serving the said notice may kindly be extended.” (c) That this Hon’ble Court be pleased to condone the delay in taking out the present application.” 2] The subject company petition was admitted on 29th November 2001 and on admission, directions were issued for advertising the company petition. 3] From the record it appears that the steps were taken and, therefore, the matter came to be placed before this Court and on 19th October 2007 following order was passed:- “1. The petitioner to take steps within ten weeks, to file the affidavit of publication if not filed and or if not dispensed with and for notice under Rule 28 of the CA581-10 3 Company Court Rules, if not sent. The petitioners if, fail to take steps within ten weeks, the petition shall stand dismissed without referring to Court’s order. The concerned office should also take steps to issue notice, accordingly without delay.” 4] A perusal of the said order would indicate that if the petitioner does not take steps within ten days and files affidavit of publication or gets the requirement of filing the same dispensed with, then, the company petition shall stand dismissed without further reference to the Court. 5] It is pointed out that an affidavit proving publication was filed on 16th January 2008. That affidavit reads thus:- “I, Arivind Kumar Singh, Zonal Manager and Constituted Attorney of the petitioner of the petitioner CA581-10 4 abovenamed, resident of Mumbai, do hereby state on solemn affirmation as under:- 1. I say that as per the direction contained in order dated 19/10/2007 passed by this Hon’ble Court in the above company petition, the petitioner has published the Notice of petition in the English daily Free Press Journal on 22/12/2007 and in the marathi daily NAVASHAKTI on 22/12/2007. The said notice of petition was also advertised in the Maharashtra Government Gazette published on 27/12/2007. A relevant page of the said Free Press Journal daily dated 22/12/2007 and Navshakti daily dated 22/12/2007 wherein the said notice of petition was published is annexed hereto and marked as Exh.A and B respectively. A relevant page of the said Maharashtra Government Gazette published on 27/12/2007 wherein the said notice of petition was CA581-10 5 published is annexed hereto and marked as Exh.C. 2. I say that the said order has been thus complied with. 3. I say that the contents of this affidavit are true and correct to the best of my knowledge and I believe the same to be true.” 6] Proceeding on the basis that this is no compliance with the order of this Court, Registry has treated this petition as dismissed. 7] Therefore, the present company application is moved seeking setting aside of such dismissal. 8] Mr.Damle learned Counsel appearing on behalf of respondent submits that this is a petition for winding up of the respondent. The winding up petition was admitted in 2001 but on account of the lapse of the petitioner, the same has been dismissed. A valuable right, CA581-10 6 therefore, accrues in favour of the respondent company as there is no petition for winding up pending against the company. In these circumstances, this Court should not exercise its inherent powers and restore this petition. 9] Reliance is placed on judgement of this Court in the case of Durga Joshi Vs. International Metal Industries & Ors. reported in 1985 Mh.L.J. 277 and a judgement of learned Single Judge of the Karnataka High Court in Company Application No.686 of 1998 decided on 6th August 1999. 10] The Company Court has inherent powers to do justice and if any provision is necessary to be referred to, then, Rules 6 and 9 of the Company Court Rules 1959 may be usefully reproduced:- “6. Practice & Procedure of the Court and provisions of the Code to apply:- Save as provided by the Act or by these Rules, the practice and procedure of the CA581-10 7 Court and the provisions of the Code so far as applicable, shall apply to all proceedings under the Act and these Rules. The Registrar may decline to accept any document which is presented otherwise than in accordance with these Rules or the practice and procedure of the Court.” “9. Inherent powers of Court – Nothing in these Rules shall be deemed to limit or otherwise affect the inherent powers of the Court to give such directions or pass such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.” 11] Therefore, the Court has ample powers in the interest of justice to restore a winding up petition which has been dismissed for procedural lapse on the part of the petitioner’s Advocate. In the instant case, I do not find any lapse becuase the initial order of 2001 directing the petitioner to pay costs and have the petition advertised, CA581-10 8 no longer operated after the further order of 19th October 2007. Therefore, what is material is compliance with the order of 19th October 2007 that required the petitioner to take steps within ten weeks. As is clear from the order and the affidavit proving publication that the petition came to be advertised by publishing a notice in English daily Free Press Journal on 22nd December 2007 and in Marathi daily Navshakti on 22nd December 2007. The advertisement in Maharashtra Government Gazette was also published on 27th December 2007. By this time, ten weeks had not expired. All that remained to be done was to report compliance by filing an affidait which affidavit was filed by petitioner’s Advocate on 16th January 2008 and, therefore, this Court gave time within which the requirement of service has been complied. 12] It is then contended that there is no compliance with Rule 28 which reads thus:- “28. Service on company – (1) Where a petition CA581-10 9 is presented against a company, it shall be accompanied by a notice of the petition in the prescribed Form together with a copy of the petition for service on the company and an envelope addressed to the company at its registered office or its principal place of business and sufficiently stamped for being sent by registered post for acknowledgement. The Registrar shall immediately on the admission of the petition send the notice together with the copy of the petition by registered post. (2) Every petition and, save as otherwise provided by these Rules or by an order of Court, every application, shall, unless presented by the Company, be served on the company at its registered office, or if there is no registered office at its principal or last known principal place of business, by leaving a copy thereof with an officer or employee of the company, and in case no such person is available, in such manner, as the Judge or Registrar may CA581-10 10 direct, or, by sending a copy thereof by prepaid registered post addressed to the company at its registered office, or if there is no registered office, at its principal or last known principal place of business, or to such person and at such address as the Judge or Registrar may direct. Where the company is being wound up, the petition or application shall also be served on the Liquidator, if any, appointed for the purpose of winding up the affairs of the company.” 13] Its title is also indicative of what the requirements are and viz., service on company. Now the Court directed the petitioner to take steps and file affidavit of publication, if not filed or if not dispensed with and notice under Rule 28 if not served. In the peculiar facts of this case, all three things were directed to be done and assuming that to be the position, yet, they were in furtherance of the CA581-10 11 intent and that is, service on the company. Once there is publication and affidavit of publication has been filed, it is clear that the affidavit of service contemplated by Rule 30 had to be filed. That was filed beyond the period of 10 weeks. In these circumstances, the requirement of procedural rules with regard to advertisement of the petition, service of petition have been complied with. In the peculiar facts of this case in the larger interest of justice, if at all there is any lapse on the part of the petitioner’s Advocate, petitioner should not suffer for the same. Hence, the application is made absolute in terms of prayer clauses (a) to (c). No costs. 14] The judgements relied upon reported in 1985 Maharashtra Law Journal 277 (Durga Mohan Joshi vs. International Metal Industries and Ors) and 1999(6) Karnataka Law Journal (Aggarwal Granite Exports Ltd, Bangalore Vs. South India Granite Company (P) Ltd, Banglore) are obviously distinguishable. In the first case, the Court has no jurisdiction. It was held that the Court has no jurisdiction, where amount is payable and instalments and time is fixed while CA581-10 12 passing the decree, there is no power in Court to grant further time without decree holder’s consent. That was a case falling under section 148 or 151 of Code of Civil Procedure, 1908 and in the case of a decree passed in a summary suit. That itself stipulates time and, therefore, any extension sought should be with the consent of the decree holder. The case is, therefore, distinguishable. 15] In the second case, the Court found as a matter of fact that the company petition was dismissed and, therefore, the application for restoration had been opposed and finding that in that case the application was lacking in bonafides that the Court refused to restore company petition. 16] Such is not the case before me and, therefore, even that order and judgement is of no assistance to the company. (S.C.DHARMADHIKARI, J)