1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION jmi COMPANY APPLICATION NO.948 OF 2009 IN COMPANY PETITION NO.847 OF 2008. Apna Organics Pvt. Ltd. ..Applicant (Org. Respondent). vs. M/s. Forbes Pharmaceuticals. ..Respondent (Org. Petitioner). .... Mr. Y.K. Tiwari, a/w. Ms. Amruta Patil, i/b. M/s. K.P. Tiwari & Co., for Applicant. Mr. Charul Abuwalla, a/w. Ms. Smita Sawant, i/b. Dave & Co., for Petitioner. .... CORAM : S.J.KATHAWALLA, J. DATE : 25TH SEPTEMBER 2009. P.C. By this application the applicant (original respondent company) is seeking condonation of delay of 227 days in filing the company application and is seeking setting aside of the exparte order dated 23 rd January 2009 passed by this Court admitting the petition for winding up of the respondent company. 2. Admittedly, the respondent had not responded to the 2 statutory notice issued by the petitioner to the respondent. Admittedly, the respondent company also failed to file any reply to the company petition though served. The order dated 11 th December 2008 passed by this Court reads thus :- “By way of indulgence, the respondent is granted time to file reply. That be done on or before 5 th January 2009. Rejoinder, if any, be filed on or before 12 th January 2009. List the matter on 16 th January 2009 under the caption “settlement” as parties may explore the possibility of settlement. 2. It is made clear that no request for further adjournment on any count will be entertained on the next date of hearing.” 3. Despite the aforesaid order, the respondent failed and neglected to even file its reply to the company petition. In view thereof, this Court by its order dated 23 rd January 2009 after holding that there is no defence to the said company petition, with a view to give the company one more chance, directed the company to pay a 3 sum of Rs.6,75,000/- on or before 15 th April 2009. In the event of the failure of the company to deposit the said amount, the petition was to stand admitted and advertised as directed under the said order. 4. No amount was paid as per the directions of this Court. The company petition therefore, stood admitted and was advertised. 5. In the affidavit in support of the company application, the entire blame is shifted on the earlier Advocate. Though the allegations made against the Advocate are very serious and amounts to professional misconduct, not a single letter is written to the earlier Advocate recording any of the allegations made against him in the affidavit in support of the company application. No complaint is filed against the Advocate with the Bar Council. A copy of this company application is not served on the said Advocate. If the allegations made against the Advocate are accepted and the order set aside on that ground, it would give an impetus to the much prevalent modus amongst the litigants of discharging the previous Advocate, appoint new Advocates and seek setting aside of exparte orders/decrees by making serious allegations against the earlier Advocate/s who are not 4 even aware that serious allegations of professional misconduct are made on oath before the Court without their knowledge and behind their back. This would cause grave injustice to the Advocate. The allegations made in the affidavit in support of the company application are, therefore, not accepted and the ex-parte order dated 23 rd January 2009, cannot be set aside on this ground. 5 However, since the learned Advocate for the respondent has submitted that the petition is devoid of any merits and the respondent company is financially very sound and willing to deposit 50% of the claim amount, and winding up of the company will cause grave prejudice to the petitioner the following order is passed in the company application : i) The respondent company to establish its bonafides, shall deposit an amount of Rs.7,00,000/- with the Prothonotary and Senior Master, (i.e. comprising of Rs.6,75,000/- as ordered to be deposited in the order dated 23 rd January 2009 and the advertisement expenses incurred by the petitioner), within a period of two weeks from today. 5 ii) If the amount of Rs.7,00,000/- is deposited by the respondent as directed in clause (i) above the exparte order dated 23 rd January 2009 shall stand set aside and the petition shall be placed for admission on 15 th October, 2009, iii) In the event of the respondent failing to deposit the said amount of Rs.7,00,000/- as stipulated in (i) above, the company application shall stand dismissed without reference to this Court. The Company application is accordingly disposed of. [ S.J.KATHAWALLA, J. ]