1 jpc IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION COMPANY APPLICATION NO. 32 OF 2010 IN COMPANY APPEAL NO. 17 OF 2010 Balaji Lifestyle Realtors Pvt. Ltd. and others .. Applicants Versus Sanjay D. Shah and others .. Respondents Ms. Mamta shah a/w Mr. Y. M.Naik i/by Mukesh Malkan for the Applicants. Mr. Simil Purohit a/w Mr. Abhijeet Mahadeokar for Respondent Nos. 1 & 2 Mr. C. D. Mehta a/w Ms. Faiza Dhanani i/by Dhruve Liladhar & Co. for Respondent No.5 Ms. Usha Rahi i/by Mayur Narendra 7 Co. for Respondent Nos. 3 and 6 CORAM : S. J. KATHAWALLA, J. DATE : 3 rd September, 2010 P.C.: 1. By this Application the Applicants/Appellants have prayed that the order dated 23 rd July, 2010 dismissing the above Company Appeal No. 17 of 2010 for default, be set aside and the Appeal be restored on the Board alongwith the Company Application Nos. 15 of 2010 and 27 of 2010. 2. The brief facts are as follows: 2 i. Respondent Nos. 1 and 2, the Original Petitioners in Company Petition No. 29 of 2008 had filed an Application before the Company Law Board (CLB), Mumbai seeking leave of the Bench to move the High Court of Bombay under Section 10 of the Contempts of Court’s Act, 1971 so as to prosecute the Applicants/Appellants herein and their respective directors for having willfully, deliberately, knowingly and intentionally disobeying the order dated 9 th June, 2009 passed by the CLB, Mumbai. In the said Application, the CLB inter alia passed the following orders: “This Bench is of the view that the interim order dated 9.6.2008 is willfully breached by respondents. This Bench cannot remain silent when the order of this Bench has been willfully breached/disobeyed. By virtue of regulation 47 of then CLB regulation 1991 any Bench of the CLB being deemed to be a Court for the purpose of prosecution of a person disobeying its order and in the light of section 10 of the Contempt of Court’s Act, 1971, the High Court has jurisdiction to exercise the power of dealing with contempt of subordinate courts in the same manner as it can deal with the contempt of the Hon’ble High Court itself. The Hon’ble High court can take cognizance of the contempt of the subordinate courts, where such contempt is not an offence punishable under the IPC. The Hon’ble High Court being the appellate authority, the CLB is deemed to be a subordinate court within the ambit of the Contempt of Court’s Act. In view of the breach of the order the applicants/petitioners may 3 take appropriate steps before the Hon’ble High Court of Bombay by invoking its jurisdiction under Section 10 of the Contempt of Court’s Act, 1971 to prosecute the respondents as prayed in para (b) of the application for having breached the interim order dated 9.6.2008” ii. On 30th March, 2010, the Applicants/Appellants filed an Appeal before this Court impugning the above order passed by the CLB dated 9 th June, 2009 under Section 10F of the Companies Act, 1956. It appears that in the said Appeal no question of law is raised. The question of law was sought to be subsequently introduced in the Company Appeal by way of a Company Application No.29 of 2010 sometime in April, 2010 which Application was not heard. The Applicants/Appellants admittedly remained absent before this Court when the matters were called out on 10 th June, 2010, 22 nd June, 2010 and 23 rd July, 2010. On 23 rd July, 2010, this Court dismissed the Appeal as well as the Application filed therein by the Applicants/Appellants. The present Application is therefore taken out for setting aside the order dated 23 rd July, 2010 of dismissing the Company Appeal in default. 3. In the affidavit filed in support of this Application, it is contended 4 that pending the above Appeal, all the disputes and differences between the parties were settled and it was decided in the meeting between the parties that they seek time in all the proceedings on the ground of settlement. It is further contended that on 23 rd July, 2010, a representative of the Applicants/Appellants was present in Court. However, he could not make out when the matter was called, and hence the matter was dismissed for default. It is contended that the Advocate for the Applicants/Appellants could not remain present as he was held up in another Court and the Applicants/Appellants were under a bona fide belief that the Advocates for the Respondents will intimate to the Court that a settlement had been reached and the paper work was in progress between the parties. It is further contended that the Appellants came to know about the said order of dismissal from the Website of the Bombay High Court. Hence, the Application is filed only on 9 th August, 2010. 4. The learned Advocate appearing for Respondent Nos. 1 and 2 has opposed the Application. He submits that the allegation made by the Applicants/Appellants in the Affidavit in support of the Company Application that all the disputes between the parties were settled is totally false and incorrect. There was no understanding between the parties that they would be seeking time on the ground of settlement. It is pointed out that it is not that the Applicants/Appellants were not present before this Court only on 23rd July, 2010 when the matter was dismissed but had also 5 remained absent on two earlier occasions i.e. on 10th June, 2010 and 22nd June, 2010. It is pointed out that in the affidavit in support of the Application, there is not even a whisper made as to why the Applicants/Appellants and their Advocates have remained absent before this Court on 10th June, 2010 and 22nd June, 2010. It is submitted that in fact, after the order dated 23 rd July, 2010 was passed by this Court (Coram: S.J. Vazifdar, J.) the Respondent Nos. 1 and 2 have filed Contempt Petition before this Court and the same appeared before the Court for hearing on 30 th July, 2010. Even in the contempt proceedings, the Appellants were not present though served. In fact the Appeal filed by the Applicants/Appellants, which was dismissed for default on 23 rd July, 2010, now has become infructuous. The learned Advocate appearing for Respondent No.5 has also submitted that no settlement had taken place between the parties and the Applicants/Appellants have approached this Court for reliefs on completely incorrect grounds. 5. In my view the Applicants/appellants have not made out any case for grant of reliefs in their favour. Even if the parties were trying to settle the matter as alleged, the Applicants/Appellants are duty bound to appear before the Court by themselves or through their Advocates and obtain appropriate orders in matters instituted by them. Though in the affidavit in support of the Application it is stated that the representative of the Applicants/Appellants was present in Court on 23 rd July, 2010 but he 6 could not make out when the matter was called out, no particulars of the said representative have been given in the affidavit in support of the Application nor any affidavit of the said representative has been filed. What is very relevant is the fact, that in the affidavit in support of the Application, the Applicants/Appellants have not even attempted to explain why their representative or their Advocate had remained absent on two earlier occasions i.e. on 10 th June, 2010 and 22 nd June, 2010. 6. Under the circumstances, in my view, no cause, much less sufficient cause is shown by the Applicants/Appellants for not remaining present before the Court when the matter was dismissed. In view thereof, the Application stands dismissed. (S. J. KATHAWALLA, J.)