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Judgment
The file has been taken up on the application of Respondent No. 2, for setting the aside final order dated 10.05.2018 disposing off the petition under
section 241-242 of the Companies Act, 2013, being CP No. 192/2017. The respondent had been proceeded exparte as they failed to contest the
allegations made against them. The relief granted to the petitioner was required to be executed by way of a decree before the Civil Court.
Upon the execution petition being filed before the Civil Court, the respondent no. 2/applicant has now filed the present application, CA 24/2019,
praying for setting aside order/decree dated 21.05.2019. The ground on which the prayer has been made for setting aside the exparte order is founded
on the assertion that the respondent/applicant was never served with any notice in this case. Further he was hospitalized for a heart problem and had
been advised bed rest in the month of July, 2018 and again in January, 2019. It was only after this period that he could file the present petition, after
acquiring knowledge of the ex parte order through the executing Court. His application is duly supported by his affidavit.
The petitioner in her reply has refuted the submissions made by the Respondent. Given the allegations of the respondent applicant that he was
proceeded ex parte without due notice of the petition being effected on him, it became expedient for this Bench to look into the service report. As per
the affidavit of service, steps for effecting notice had been taken Dasti by the petitioners by post as well as by hand. While notices sent vide registered
post were returned back unserved with the report 'Unclaimed', notices effected by hand were duly served. Notice on respondent No. 2/applicant had
been effected on Mr. Praveen Lamba under his signature. Mr. Praveen Lamba is the father of the respondent and is residing at the same address. In
respect of the other Director Respondent No. 2, who is the brother of the respondent No. 1 /applicant, notice was accepted by his wife Mrs. Preeti
Lamba and bears her signatures in acknowledgement of having received the same.
In view of the steps taken for service which were duly acknowledged by the residents of the same house, being the father of the
Respondent/applicant and wife of his brother Respondent No. 3, it cannot be said that no service of the notice of filing of the petition was brought to
their notice. Despite the same, if they failed to contest the proceedings, they cannot seek to set the clock back and contest the same now.
The petitioner in her reply has vehemently opposed the prayer made herein. It is her case that the respondent applicant always had knowledge of
the pendency of the proceedings but deliberately chose not to contest it. She has cogently been able to show service being effected by hand on the
father of the Respondent No. 2 and wife of Respondent No. 3, who are residents of the same house. The signature affixed in acknowledgment of
receipt are not repudiated. Further the respondents did not accept notice sent vide registered post which returned back with the report ""unclaimed"",
under such circumstances, the submission that service was not effected on the respondents cannot be accepted.
The petitioner has also pointed out that the application is highly belated and barred by limitation. Even as per the respondent/applicant he acquired
knowledge of the impugned order long back but took no steps for setting it aside. He seeks to rely upon his medical records, but these relate to a much
latter period. Further his submission that he was advised bed rest is not corroborated by any medical record.
There is no illegality in the order proceeding against the respondents ex-parte and therefore the clock cannot be turned back to grant the applicants
the benefit of contesting the petition again.
The submissions are devoid of any merit. CA 24/2019 stands dismissed.