2005 (2) TMI 542 - HC - Companies Law

Summary

Issues Involved:
1. Delay in filing the counter-affidavit by the respondent-company.
2. Applicability of Rule 103 of the Companies (Court) Rules, 1959.
3. Consideration of costs for adjournments.

Issue-wise Detailed Analysis:

1. Delay in Filing the Counter-Affidavit by the Respondent-Company:
The respondent-company filed Civil Misc. Application No. 31643 of 2005, seeking to condone the delay in filing the counter-affidavit. The delay was attributed to changes in personnel managing the company matters and the time taken to gather relevant information. The affidavit supporting the application lacked specific dates and particulars regarding the personnel changes and the collection of information. Despite the vague nature of the affidavit, the court, in the interest of justice, decided to condone the delay subject to the payment of Rs. 5,000 as costs by the respondent-company.

2. Applicability of Rule 103 of the Companies (Court) Rules, 1959:
The petitioner-company argued that the counter-affidavit should not be taken on record due to non-compliance with Rule 103, which mandates filing the affidavit not less than five days before the hearing and serving a copy on the petitioner or their advocate. The court examined Rules 24, 96, 99, and 103 of the Companies (Court) Rules, 1959. It concluded that Rule 103 applies only after the petition is admitted, a hearing date is fixed, and advertisement directions are issued. Since the petition was yet to be admitted and no hearing date was fixed, Rule 103 did not apply at this stage, allowing the counter-affidavit to be taken on record.

3. Consideration of Costs for Adjournments:
The petitioner-company sought costs for repeated adjournments due to the illness slips submitted by the respondent-company's counsel. The court acknowledged the inconvenience caused by these adjournments but noted the personal difficulties faced by the respondent's counsel. Given that the counsel appeared in court and the counter-affidavit was filed, the court decided not to impose costs for the adjournment on 3rd February 2005. However, the delay in filing the counter-affidavit was condoned with a cost of Rs. 5,000 to be paid by the respondent-company.

Order:
The delay in filing the counter-affidavit was condoned, and the counter-affidavit was accepted subject to the payment of Rs. 5,000 by the respondent-company. The petitioner-company was granted four weeks to file a rejoinder affidavit. The case was listed for 22nd March 2005, to be placed among the top cases in the cause list.