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TMI Blog2005 (2) TMI 542X X X X Extracts X X X X X X X X Extracts X X X X ..... t-company by filing his Vakalatnama. On prayer made by Sri Piyush Agarwal, learned counsel for the respondent-company, three weeks time was granted for filing counter-affidavit on behalf of the respondent-company. The said order dated 26th April, 2004 is reproduced below : "Vakalatnama on behalf of respondent-Company, namely, Oswal Chemicals and Fertilizer Ltd. has been filed by Sri Piyush Agarwal, Advocate. He prays for and is granted three weeks time to file counter- affidavit. List for orders after expiry of the aforesaid period. On the next date of listing the names of Sri Piyush Agarwal and Bharat Ji Agarwal shall be shown as counsel for the respondent." 6. Pursuant to the said order dated 26th April, 2004, the case was listed before the Court on 3rd September, 2004. On the said date, i.e., 3rd September, 2004, the case was adjourned to 14th October, 2004 as the learned counsel for the respondent-company had sent illness slip. The said order dated 3rd September, 2004 is as follows : "Sri Bharat Ji Agarwal and Sri Piyush Agarwal, learned counsels appearing for the respondent-company have sent illness slips today. Sri Amit Prasad, learned counsel for the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 18th November, 2004, Sri Piyush Agarwal, learned counsel for the respondent-company had sent illness-slip. Further, the cases of Sri Bharat Ji Agarwal, learned Senior Counsel appearing for the respondent-company were reported to be adjourned till 18th November, 2004 itself. In the circumstances, the case was directed to be listed peremptorily on 9th December, 2004. The said order dated 18th November, 2004 is reproduced below : "Pursuant to the order dated 4th November, 2004, the case is listed peremptorily today. Sri Manoj Kumar Singh, learned counsel for the petitioner is present. However, Sri Piyush Agarwal, learned counsel for the respondent-company has sent an illness slip today : Further, the cases of Sri Bharat Ji Agarwal, learned Senior Counsel appearing for the respondent-company are reported to be adjourned till 18th November, 2004, i.e., till today. In the circumstances, the case is passed over today. List on 9th December, 2004, peremptorily." 11. On 9th December, 2004, the case was listed peremptorily. 12. Learned counsel for the petitioner-company was present. However, the learned counsel for the respondent-company was not present. 13. In the ci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned counsel for the respondent-company has sent illness slip today. Shri Amit Prasad, learned counsel for the petitioner is present. He submits that despite the case having been listed peremptorily on earlier dates also, learned counsel for the respondent-company either sent illness slip or he did not appear. It is further submitted by Shri Amit Prasad that despite appearance having been put-in on behalf of the respondent-company on 26-4-2004, no counter-affidavit has been filed so far in the matter. I have considered the submissions made by Shri Amit Prasad, learned counsel for the petitioner. It is true that pursuant to the order dated 9-12-2004, the case is listed peremptorily today, and as such, there is no occasion for adjournment of the case on the illness slip of the learned counsel for the respondent-company. However, in the interest of justice, one more opportunity is given to the respondent-company. In the circumstances, the case is directed to be listed peremptorily on 3-2-2005. The case will be listed amongst the cases listed at the top of the cause list of the said date. It is made clear that no adjournment will be granted on the said date, i.e., 3-2-2005 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven to the respondent-company. In the circumstances, the case is directed to be listed peremptorily on 3-2-2005. The case will be listed amongst the cases listed at the top of the cause list of the said date. It is made clear that no adjournment will be granted on the said date, i.e., 3-2-2004. Learned counsel for the petitioner undertakes to give written intimation of this order to the learned counsel for the respondent-company by 21-1-2005. Sri Amit Prasad, learned counsel for the petitioner-company states that pursuant to the directions given in the said order dated 13-1-2005, written intimation regarding the said order has been given to the learned counsel for the respondent-company on 21-1-2005. Despite the case having been listed peremptorily today and despite the observation having been made in the said order dated 13-1-2005 that no adjournment would be granted on 3-2-2005 ( i.e., today). Sri Piyush Agarwal, learned counsel for the respondent-company has again sent illness slip today. Further, there is marking in the cause list regarding the adjournment of the cases of Sri Bharat Ji Agarwal, learned Senior Counsel for the period up to 4-4-2005. However, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of J.P. Unny, stated to be the Legal Executive of the respondent-company, sworn on 14th February, 2005. 31. It is, inter alia, stated in the said affidavit that the person looking after the Company matters at the relevant time, namely, Sri A.G.V. Subbu left the Company, and thereafter, Sri Sudhir Bhalla was entrusted with the work but he also left the job; and that thereafter, J.P. Unny was handed over the work to look after the company matters; and that it took time to collect the information from the relevant records; and that in these circumstances, the counter-affidavit could not be filed despite several occasions/time granted by this Court; and that the delay in filing the counter-affidavit was bona fide and beyond the control of respondent-company; and that the delay in filing the counter-affidavit be condoned, and the counter-affidavit be taken on record. 32. It must be mentioned that along with the said application and its supporting affidavit, a counter-affidavit sworn on 14-2-2005 by J.P. Unny, stated to be the Legal Executive of the respondent-company, has been filed. 33. Sri Amit Prasad, learned counsel for the petitioner-company, submits that on 3rd Feb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rwal, learned counsel for the respondent-company, submits that the delay in filing the counter-affidavit is bona fide as is evident from the aforementioned application and its supporting affidavit. 41. It is further submitted by Sri Piyush Agarwal that rule 103 of the Companies (Court) Rules, 1959 is not applicable at the present stage of the case. 42. It is further submitted by Sri Piyush Agarwal that the adjournments were sought on behalf of the respondent-company on account of his personal difficulty, and, therefore, the cost be not imposed in the matter. 43. I have considered the submission made by the learned counsel for the parties, and perused the record. 44. Let us first consider the submission made by Sri Amit Prasad that in view of rule 103 of the Companies (Court) Rules, 1959, counter-affidavit, sought to be filed on behalf of the respondent-company, be not taken on the record in view of the fact that the requirements of the said rule 103 of the Companies (Court) Rules, 1959 are fulfilled in the present case. 45. In order to appreciate the submission made by Sri Amit Prasad, learned counsel for the petitioner-company, it is pertinent to refer to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... direct notice to be given to the Company "before giving directions as to the advertisement of the petition". 47. Hence, before admitting the petition and fixing a date for the hearing of the petition and giving directions as to the advertisement to be published, it is open to the Company Judge to direct for issuance of notice to the Company. 48. It is further evident that in case, after giving notice to the Company and hearing the version of the Company, the Company Judge is of the opinion that it is necessary to admit the petition and fix a date for the hearing thereof and to issue directions as to the advertisements to be published, the Company Judge may pass appropriate orders. 49. In case, the petition is admitted and the date for the hearing of the petition is fixed and the directions are given for the advertisements to be published, such advertisements are to be published in accordance with the provisions of rule 24 of the Companies (Court) Rules, 1959, as is clear from rule 99 of the Companies (Court) Rules, 1959. 50. Rule 103 of the Companies (Court) Rules, 1959 will have to be read in the context of rules 24, 96 and 99 of the Companies (Court) Rules, 1959. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompany Petition is yet to be admitted and the date for hearing of the Company Petition is yet to be fixed and the directions for advertisement of the Company Petition are yet to be given, rule 103 of the Companies (Court) Rules, 1959, in my view, does not come into play in the present case at this stage. 56. Therefore, I find myself unable to accept the submission of Sri Amit Prasad, learned counsel for the petitioner-company that in view of rule 103 of the Companies (Court) Rules, 1959, counter-affidavit, sought to be filed on behalf of the respondent-company, be not taken on the record. 57. Coming now to the aforementioned application being Civil Misc. Application No. 31643 of 2005 filed on behalf of the respondent-Company, it is, inter alia, prayed in the said application that the delay in filing the counter-affidavit be condoned and the counter-affidavit be taken on record. 58. A perusal of the averments made in the aforementioned application and its supporting affidavit, shows that relevant dates and particulars required for explaining the long delay of 270 days in filing the counter-affidavit have not been mentioned in the said application and its supporting aff ..... X X X X Extracts X X X X X X X X Extracts X X X X
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