Perfect Packaging Partnership Firm vs Decolight Ceramics Limited

R.M. Chhaya, J

Heard the learned advocates appearing for the respective parties.

By this application, the applicant has prayed for restoration of Company Petition no. 19 of 2015 to its original file and to quash and set aside the order of discharge of Official Liquidator dated 19.6.2018.

This Court was constrained to pass the order dated 20.7.2017 as the advocate then appearing for the petitioner sought deletion of his appearance and even though the fresh notice issued by this Court was served upon the applicant - petitioner, none appeared. Under such circumstances, this Court passed the following order on 20.7.2017:-

"1. The present petition is filed under Sections 433, 434 and 439 of the Companies Act, 1956.

This Court (Coram: Abhilasha Kumar, J.) by order dated 07.01.2016 was pleased to Admit the matter. Thereafter, the learned counsel then appearing for the petitioner sought extension of time for publication of advertisement of notice of admission as provided in the order dated 07.01.2016. Thereafter, the learned counsel appearing for the petitioner filed note for permitting him to retire. The record shows that the advocate for the petitioner informed the petitioner by Regd. Post A.D. By a further order dated 02.02.2017, the learned advocate for the petitioner was permitted to retire and withdraw his appearance and notice was issued to the petitioner which is duly served. This Court by order dated 29.06.2017 also gave one more opportunity and in fact took assistance of the Official Liquidator and the Assistant Official Liquidator has informed the petitioner in writing about the next date of hearing. Still however, no appearance is filed and no one has remained present for and on behalf of the petitioner. There is also nothing on record to show that the order dated 07.01.2016 and also the order dated 29.08.2016 passed by this Court in OJCA No. 383/16 for publication of notice of admission in English daily Indian Express/DNA, Ahmedabad edition and Gujarat daily newspaper Divya Bhaskar is complied with.

In light of the aforesaid facts therefore, the petition is dismissed for want of non-prosecution. Notice discharged."

Mr. C.P. Chaniyara, learned advocate for the applicant has submitted that because of the circumstances beyond the control of the applicant after the deletion of the name of earlier advocate, the applicant could not appoint other advocate and meanwhile the order dated 20.7.2017 was passed. It is further submitted that as per the order dated 19.6.2018 passed by this Court in Official Liquidator Report no. 4 of 2017, the possession of the properties of the opponent - Company was taken over by the Official Liquidator. It is further submitted that the matter could not be proceeded further on technical ground on non-publication of the advertisement. Mr. Chaniyara undertakes that if the matter is restored back, the applicant shall proceed further in accordance with law. On the aforesaid grounds, it is submitted that the matter may be restored back and the applicant may be given an opportunity to redress his grievances on merits.

Mr. Pathik Acharya, learned advocate for the Official Liquidator, however, submitted that the Official Liquidator, as per the earlier directions issued by this Court, did take possession of the premises of the opponent - Company, however, thereafter the Official Liquidator has handed over the possession of the said premises to opponent no. 6 - Bank as the proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 were initiated by the opponent no. 6 - Bank.

Mr. K.M. Parikh, learned advocate for the opponent no. 6 - Bank of India also reiterates the same thing and submitted that the possession of the immovable properties of the opponent - Company is with the Bank.

Having heard the learned advocates appearing for the respective parties, it clearly appears that as the learned advocate for the applicant was permitted to retire and permitted to withdraw his appearance and though the notice was served upon the applicant, he preferred not to appear before this Court and therefore, this Court was left with no other alternative but to pass the order dated 20.7.2017. However, the fact remains that this Court has not opined anything on the main Company Petition.

In the interest of justice therefore, the applicant deserves to be given a chance to ventilate his grievances on merits. It is, however, clarified that this Court has not expressed any opinion earlier and does not express any opinion on merits of the possession of the opponent no. 6 - Bank as it is pointed out by the learned advocate for the Official Liquidator as well as the learned advocate for the Bank that the possession of the said immovable property of the opponent - Company is with opponent no. 6 - Bank under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. Considering the oral undertaking of the learned advocate for the applicant that the applicant shall take appropriate recourse available under the law and pursue the Company Petition, the order dated 20.7.2017 is hereby recalled and Company Petition no. 19 of 2015 is restored back to its original file at the stage of non-compliance of the order of advertisement that is the position which existed on the date of passing of the order dated 20.7.2017. However, the applicant shall deposit cost of Rs. 2,000/- with Gujarat High Court Legal Services Committee within a period of one week from today.

9 . Accordingly, the present application is allowed in the above terms. Rule is made absolute to the aforesaid extent.