Costa And Company Private Limited vs Costa Limited

S. Usha, J

Miscellaneous petition filed by the applicant for restoration of the rectification application dismissed for non-prosecution.

The applicant had stated that the matter listed on 18.9.2009 was only for hearing the miscellaneous petition and not for the main application and

dismissal of the main rectification application was in violation of the principles of natural justice. The order is an error apparent which has got to be

recalled.

The Respondent herein filed their reply to the miscellaneous petition denying the averment that this Hon'ble Board could pass orders only in the

miscellaneous petition and not the main rectification application. The Respondent had further stated that sufficient time was granted, but the Petitioner

failed to comply with the directions of the Board and hence the Board passed the order dismissing the Rectification application for default.

The counsel for the Petitioner vehemently contended that in the hearing notice only the miscellaneous petition was mentioned and to dismiss the

main matter was against the principles of natural justice. He also cited the Judgments in support of his contention.

Chet Ram Gupta v. Motian Devi Lamba 58 (1995) DLT 366

Goswami Krishna Murarilal Sharma v. Dhan Prakash and Others : 1981 (4) SCC 574 and

Ragiq and Anr. v. Munshilal and Anr. 1981 (2) SCC 788.

The counsel for the Respondent mainly contended that there was no valid reason or an apology tendered by the Petitioner in the petition for

restoration. The main contention was that the miscellaneous petition was posted for hearing and that only miscellaneous petition can be disposed and

not the main rectification application. It is further contended that there is no whisper to explain as to what prevented the applicant to appear in person

or through a counsel on the date of hearing or complying with the directions of the Appellate Board.

We have heard and considered the arguments of both the parties. We first would comment on the manner in which the petition has been drafted.

The miscellaneous petition on perusal seems to be that the Petitioner is seeking for restoration as a matter of right. In fact, no reason has been given

by the Petitioner for his absence or for not instructing the counsel to appear with the vakalat on the date of hearing. In fact, the original rectification

application was filed by one Mr. Rajesh Ramanathan, subsequently there was a change in counsel and one Ms. Rajeswari filed a change of vakalat.

On 06.02.2009, Ms. Rajeswari authorized Mr. Tejinder Singh, Advocate and or any partner or Assistant in the firm of Crawford Bayley & Co.

Solicitors and Advocates to appear and argue the matter on 10.02.2009. Meanwhile on 07.02.2009, Mr. Sushant Singh filed a form 5 requesting for

adjournment on the ground that he has instructions to file a change of valakat with an authorization to Mr. Tejinder Singh. It is not made clear as to

how Mr. Sushant Singh had authorized Mr. Tejinder Singh. This Board without going into those technical aspects was pleased to consider the request

of Mr. Sushant Singh and Mr. Tejinder Singh having in mind the interest of the litigant concerned. The Appellate Board had dismissed the main

rectification application itself as there was no counsel representing the applicant. Vakalatnama which is the authority or the main basis by which the

counsel files an application and when that is not available there will be no meaning in having the main matter kept pending. The Board, therefore,

dismissed the main rectification application. Therefore, the contention of the applicant is meaningless to say that only the miscellaneous petition ought

to have been dismissed. The Appellate Board has also considered the interest of the applicant and had granted several chances to file their vakalat.

We do not find any justification or reason given by the counsel while drafting the petition for restoration. We are of the view as already observed

that by not allowing this petition, the litigant will be put to unnecessary loss due to the counsel's mistake. Taking into consideration the interest of the

applicant, we allow this petition on payment of costs of Rs. 5000/-within three weeks from the date of receipt of this order to the Respondent and a

copy of acknowledgement be sent to the Registry of this Board, failing which the miscellaneous petition will stand dismissed.