1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.1616 OF 2008 IN APPEAL NO.949 OF 1999 IN COMPANY APPLICATION NO.432 OF 1998 IN COMPANY PETITION NO.41 OF 1986 Official Liquidator, High Court, Bombay ..... Appellant V/s. M/s.Diamond Metal Corporation & Ors. ..... Respondents Mr.Vishwajeet Sawant, for the Appellant in support. Mr.Jaideep Mitra i/b Hariani & Co., for the Respondent Nos.1 & 2. CORAM : SRI R.M.S.KHANDEPARKAR & SRI P.B.MAJMUDAR, JJ. DATED : JUNE 19, 2008. P.C. 1. Heard. 2. Undisputedly, the appeal was disposed of and dismissed for default on 29-03-2007. The notice of notion for restoration of the said appeal has been taken out as late as on 24-04-2008. The explanation for such a long delay in taking steps for restoration of the appeal is that the Advocate for the Official Liquidator failed to appear in the Court on the day the appeal 2 was dismissed and thereafter, the fact of the dismissal of the appeal was learnt by the Official Liquidator by the letter addressed by the respondents on 08-05-2007. It is the further contention of the Official Liquidator that pursuant to the said letter, which was admittedly received on 09-05-2007, the Official Liquidator addressed a letter to M/s.Hirani & Co., Advocates for the Respondent, on 13-06-2007, requesting for copy of the order dated 29- 03-2007, which was received by the Official Liquidator on 27-07-2007. Thereafter, on 10-07-2007 the Official Liquidator addressed a letter to M/s.Shah & Co., Advocate for the Appellant in the appeal, to take necessary action for restoration of the appeal. Reminders were sent to the said Advocate on 06-08-2007 and 01-10-2007. However, there was no response from the Advocate. It is also stated that there was several attempts to hold meeting for settlement of the dispute. As there was no response from the Advocate, a report was submitted to the Company Judge for permission to engage another Advocate and the present Advocate was engaged and thereafter, necessary steps were taken. Pursuant to the order dated 20-03-2008 of the learned Company Judge, permitting the Official Liquidator to engage another Advocate. 3. The affidavit in support of the notice of motion nowhere discloses as to what methodology was being followed by the Official Liquidator to keep himself informed about the proceedings in the Court in relation to 3 matter in hand and why it took nearly two months to know about the disposal of the appeal and that too on the basis of the letter received from the respondent. The affidavit nowhere discloses what prevented the Office of Official Liquidator from taking appropriate steps and to ensure that the earlier Advocate on record takes appropriate steps to restore the appeal immediately after the fact of dismissal of the appeal was brought to the notice of the Official Liquidator by the respondent. The affidavit nowhere discloses what prevented the Office of Official Liquidator from writing a letter to the earlier Advocate from 09-05-2007 till 13-06-2007. The affidavit also nowhere discloses what prevented an Officer from the Office of the Official Liquidator from personally approaching the concerned Advocate pursuant to the said dismissal of the appeal, so as to ensure that the appeal is restored immediately. It appears that the Officers of Official Liquidator are under the impression that their duty is only to write letters and to do nothing else. Apparently, the affidavit nowhere discloses sufficient cause for delay in taking out notice of motion in the matter. The affidavit also nowhere discloses what prevented the Official Liquidator from moving before the Company Judge to seek permission to engage another Advocate from June 2007 till February 2008. In short, the affidavit nowhere discloses any causes as such for delay in taking out the notice of motion for restoration of the appeal and being so, the question of 4 condonation of delay without sufficient cause being shown does not arise. 4. Considering the fact that total failure on the part of the office of Official Liquidator to take appropriate steps in the matter, it would be appropriate for the concerned authorities to take note thereof and to initiate proper action against the concerned Officer/Officers. A copy of this order be placed before the Learned Company Judge in Company Petition No.41 of 1986. 5. With the above observation, the notice of motion in the absence of sufficient cause being shown is dismissed with costs. ( P.B.MAJMUDAR, J.) ( R.M.S.KHANDEPARKAR, J.)