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TMI Blog2016 (1) TMI 1522X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 and upon reading order dated 14/10/2015 made in CP.No.363/2015 & in CA.Nos.887&888/2015 and the order dated 23/11/2015 made in CA.Nos.1117 & 1118/ 2015 in CP.No.328/2015 & CA.Nos.1119& 1120/2015 in CP.No.363/2015. The court made the following order: "Material on record discloses that M/s. Credit Suisse AG, Switzerland, has filed CP.No.363 of 2015, under Sections 433(e) and (f), 434(i)(a) and 439(1)(b) of the Companies Act, 1956, for winding up of the Company, viz., M/s. Spicejet Ltd., Chennai, under the provisions of the Companies Act,1956, and also for an appointment of Official Liquidator, High Court, Madras, as the Liquidator of the Company, with all powers, under Section 448 of the Companies Act, 1956, to take charge of the assets, properties, stock in trade and books of account of the Company." 2. Along with Company Petition No.363 of 2015, M/s. Credit Suisse AG Switzerland, has filed Company Application No.887 of 2015, for an injunction, restraining M/s. Spicejet Ltd., Chennai, its directors, officers, servants, agents or anyone acting through or under them from in any manner alienating, encumbering, dealing with, disposing or creating any third party rights, interests ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter has been listed before the Court. On 03-09-2015, when Company Application No.830 of 2015, came up for hearing, there was no representation for M/s. Spicejet Ltd., Chennai and hence, this Court has ordered an interim injunction. 10. Material on record discloses that Company Application Nos.887 and 888 of 2015 in C.P.No. 363 of 2015, have been listed before this Court on 15.09.2015. On that date, the following order has been passed, "At the request of the learned counsel for the applicant, adjourned by one week". Subsequently, the abovesaid matter has been listed on 23.09.2015. Thereafter, on 14.10.2015, when the Company Application Nos.887 and 888 of 2015 in C.P.No.363 of 2015, came up for hearing, there was no representation, on behalf of M/s. Spice jet Ltd., Chennai, the company sought to be wound up, and hence, this Court, on 14-10-2015, while admitting C.P.No.363 of 2015, appointed the Official Liquidator, High Court, as Provisional Liquidator, to take charge of the assets of the respondent-Company. 11. Similarly, when Company Application Nos.828 to 830 of 2015 in C.P.No.328 of 2015, came up for hearing on 14.10.2015, there was no representation, on behalf of M/s. Spicejet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions, the matter was entrusted to a learned counsel, to appear and defend the case. But unfortunately, the vakalat sent by the learned counsel, was not returned to him, immediately. C.P.No.363 of 2015, along with Application Nos.887 and 888 of 2015 respectively, were listed before this Court on 14.10.2015 as Item No.11. Since vakalat was not filed, the counsel engaged by the applicant, M/s. Spicejet Ltd., instructed one of his juniors, to appear and represent before the Court. Unfortunately, the junior counsel was bit late, in reaching the Court and in the mean while, matter was called and this Court passed an ex parte order, in all the applications, listed on that day. 17. Learned counsel appearing for the applicant in Company Application Nos.1119 and 1120 of 2015 in C.P.No.363 of 2015, further submitted that one Mr. Syed Thaga, junior advocate, attached to the Office of the learned counsel on record, for M/s. Spicejet Ltd., Chennai, has also filed a supporting affidavit, dated 16th December, 2015, supporting the version of Mr. Gavin Jefferies, Station Manager, M/s. Spicejet Ltd., Chennai, the deponent of the affidavit, dated 2nd November, 2015, filed in support of the Judge' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... et Ltd., Chennai, through its counsel, has caused a notice, dated 24.09.2015, calling upon M/s. Credit Suisse AG, Switzerland, to furnish the entire papers, pertaining to Application Nos.887 and 888 of 2015 in C.P.No.363 of 2015, which were also sent on 28th September, 2015. In this context, he produced the copy of a letter, dated 24.09.2015, for perusal. 22. According to the learned counsel appearing for the respondent, in the letter, dated 24.09.2015, M/s. Spicejet Ltd., Chennai, has categorically mentioned C.P.No.363 of 2015 and therefore, it is not open to them to contend that they are not aware of the filing of C.P.No.363 of 2015. He also submitted that when all the applications were listed on 14.10.2015, the letter, dated 24.09.2015, of M/s. Spicejet Ltd., Chennai, was placed before this Court, and after going through the same and taking note of the deliberate absence of the Company, sought to be wound up, this Court has passed an order, appointing the Official Liquidator, High Court, Madras, as Provisional Liquidator, to take charge of the assets of the applicant-Company. Thereafter, gazette publication has been effected and proceedings have been taken for advertisement in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rough or under them from in any manner alienating, encumbering, dealing with, disposing or creating any third party rights, interests or charge in or over the assets of the Company, sought to be wound up, pending disposal of the Company Petition. 27. By way of reply, Mr. Rama Krishnan Veeraraghavan, learned Senior Counsel appearing for M/s. Spicejet Ltd., Chennai, submitted that the counter affidavit is already ready, but since arbitration proceedings were in progress in a foreign country and some changes were required to be made, counter affidavit could not be filed immediately, along with Application Nos.1119 and 1120 of 2015. He further submitted that the counter affidavit could be filed, within two weeks. 28. On the contention that there should be an order of interim injunction, restraining M/s. Spicejet Ltd., Chennai, its directors, officers, servants, agents or anyone acting through or under them from in any manner alienating, encumbering, dealing with, disposing or creating any third party rights, interests or charge in or over the assets of the Company, sought to be wound up, till Application Nos.887 and 888 of 2015, learned counsel for the applicant-M/s.Spicejet Ltd., Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lication in C.A.No.887 of 2015, has been filed for an injunction, restraining M/s. Spicejet Ltd., Chennai, its directors, officers, servants, agents or anyone acting through or under them from in any manner alienating, encumbering, dealing with, disposing or creating any third party rights, interests or charge in or over the assets of the Company, sought to be wound up, pending disposal of the Company Petition. 34. Having received the notices in the abovesaid applications and when M/s. Spicejet Ltd., Chennai, has sent a notice, dated 24.09.2015, to the learned counsel for M/s. Credit Suisse AG, Switzerland, it cannot be contended by M/s. Spicejet Ltd., Chennai, was not aware of filing of the Company Petition. Perusal of the letter, dated 28.09.2015, of the respondent, shows that typed set of documents filed in C.P.No.363 of 2015, have been enclosed, along with the said letter. Despite of the above, M/s. Spicejet Ltd., Chennai, has not chosen to appear before this Court, either in person or through counsel, on 14.10.2015. 35. Reading of the order made in Company Application Nos.887 and 888 of 2015, shows that this Court had perused the letter, dated 24.09.2015 and observed that de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that a practice has grown up in the High Court of Allahabad amongst the lawyers that they remain absent when they do not like a particular Bench. Maybe he is better informed on this matter. Ignorance in this behalf is our bliss. Even if we do not put our seal of imprimatur on the alleged practice by dismissing this matter which may discourage such a tendency, would it not bring justice delivery system into disrepute. What is the fault of the party who having done everything in his power and expected of him would suffer because of the default of his advocate. If we reject this appeal, as Mr. A.K. Sanghi invited us to do, the only one who would suffer would not be the lawyer who did not appear but the party whose interest he represented. The problem that agitates us is whether it is proper that the party should suffer for the inaction, deliberate omission, or misdemeanour of his agent. The answer obviously is in the negative. Maybe that the learned advocate absented himself deliberately or intentionally. We have no material for ascertaining that aspect of the matter. We say nothing more on that aspect of the matter. However, we cannot be a party to an innocent party suffering injust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bliss. Even if we do not put our seal of imprimatur on the alleged practice by dismissing this matter which may discourage such a tendency, would it not repute. What is the fault of the party who having done everything in his power and expected of him would suffer because of the default of his advocate. If we reject this Appeal, as Mr. A.K.Sanghi invited us to do, the only one would suffer would not be the lawyer who did not appear but the party whose interest he represented. The problem that agitates us is whether it is proper that the party should suffer for the inaction, deliberate admission, or misdemeanor of his agent. The answer obviously is in the negative. May be that the learned advocate absented himself deliberately or intentionally. We have no material for ascertaining that aspect of the matter. We say nothing more on that aspect of the matter. However, we cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted." (iv) At this juncture, it is also worthwhile to consider the decision of the Supreme Court in Collector, Land Acquisition v. Mst. Katiji AIR 1987 SC 1353, in the matter of entertaining an application for condona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the date it was posted. Suit was dismissed. An application filed for restoring was also dismissed. Being aggrieved an appeal was filed before the High Court. The question framed by the High Court was whether, the absence of lawyer, on the ground that he had some professional work, elsewhere, constitutes "sufficient cause". Dealing with the above in Paragraph No. 3 and after considering decisions in Deshbandhu Gupta & Co. v. K.B. Malik & Co. 1972 LR 18, P.d. Shamdasani v. Central Bank of India AIR 1938 Bom. 199 and Mst..Katiji (supra), the Delhi High Court, held as follows:- '9. "Sufficient Cause" has to be given a meaning to embrace all relevant circumstances having bearing on the point in issue and since a Judge has to adjudicate on the particular facts of each case, it may become very risky in such cases to act on precedents. It is, however, not every absence of a lawyer which may provide a sufficient cause. The question would be whether he honestly intended to be in court and did his best to get there in time and once the court feels satisfied that he did try to get there and that he would have even got there in time but for the intervention of some inevitable cause for w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e above discussion and decisions, Application No.1119 of 2015, filed to set aside the exparte order, dated 14.10.2015, in Application Nos.887 and 888 of 2015 in C.P.No. 363 of 2015, is ordered. Order in Application No.888 of 2015, dated 14.10.2015, appointing the Official Liquidator, High Court, Madras, as the Provisional Liquidator, is rescinded. Application Nos.887 and 888 of 2015, are restored to file. 42. Under similar circumstances, in Company Application No.830 of 2015 in Company Petition No.328 of 2015, this Court has granted an interim injunction on 03.09.2015. Subsequently, further proceedings in C.P.No.328 of 2015 have been stayed and lateron, the ex parte order, dated 14.10.2015, has been revoked. 43. Taking note of the submissions of the learned counsel appearing for M/s. Credit Suisse AG, Switzerland and Mr. Rama krishnan Veeraraghavan, learned counsel appearing for M/s. Spicejet Ltd., Chennai and to maintain balance of convenience, between the parties, there shall be an interim injunction, in Company Application No.888 of 2015 in Company Petition No.363 of 2015, restraining M/s. Spicejet Ltd., Chennai, its directors, officers, servants, agents or anyone acting throu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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