An application seeking recall of an order and restoration of a main petition was dismissed. The Court held that a late-filed reply affidavit could not be recorded without condonation of delay and found the applicant's creditor grievances irrelevant to the shareholder scheme proceeding.
Application disposed of; order dated 18th January 2008 not recalled.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
COMPANY APPLICATION No. 139 OF 2008 IN COMPANY PETITION No. 854 OF 2007 IN COMPANY APPLICATION No.900 OF 2007
Bilpower Ltd. Vs.
Bhavana Ashit Desai
... Petitioner
... Applicant
Mr. Rajesh Shah, Advocate for the petitioner.
Mrs. Neeta Solanki i/b Kiran Jain & Co. Applicant
CORAM : A. M. KHANWILKAR, J.
DATE : FEBRUARY 6, 2008.
PC :-
Heard the counsel for the parties. The
| principal | grievan | ce | in | this | ap |
plication is that |
|---|---|---|---|---|---|---|
| although | the | applicant | h |
ad | filed | reply affidavit |
| raising | objection | to |
the | sch | eme | propounded by the |
| Company, | the | said | affid | avit | dated | 17th January |
| 2008 | has not |
been | consi | dered | by | the Court at all. |
| Instead | in |
paragraph | 16 | of | the | order dated 18th |
| January | 2008 |
the C |
ourt | h | as | recorded that no |
| objection | to the |
scheme | ha | s | been | received from any |
| party. | On | this c |
ontenti | on, | it | is requested that |
the order dated 18th January 2008, allowing the petition be recalled and the main petition be
restored to the file, to be heard on merits afresh.
| 2. | The | grievance | made on behalf of the | |
|---|---|---|---|---|
| applicant | clearly | overl | ooks the fact that in |
terms |
| of or |
der | dated | 14th December, 2007, |
the |
| applicant/obje | ctor | was | required to file |
reply |
| affidavit | on | or | before 8th January |
2008. |
| Obviously, | as | the | reply was filed beyond |
the |
| specified | date, | the | same was not taken on |
record. |
| Admittedly, | the | dela | y in filing reply by |
the |
| objector | has | not | been excused by the Court. |
In |
| absence | of | further | order by the Court |
for |
| condoning | the | delay | in filing the reply |
affidavit, |
the filing of such affidavit was of no avail.
fact that the appearance of the advocate on record
was duly notified on the board.
| reckoned wherein |
it is ass |
erted | that the |
objector |
|---|---|---|---|---|
| is entitled to |
receive some |
a | mounts from |
the |
| transferee company, |
in relation |
to | the sale |
deed |
| executed between |
the parties |
in | respect of |
the |
| immovable property. |
That | griev | ance cannot |
be |
| taken into account |
in consideri |
ng | the scheme |
which |
| is propounded by |
the company, |
wh | ich relates to |
the |
| shareholders alone. |
There is |
n |
o provision in |
the |
| scheme which |
is likely to |
affec | t the secured |
or |
| unsecured creditors, |
one way |
or | the other. |
The |
| grievance of the |
applicant, if |
any | , will have |
to |
| be addressed i |
n appropriate |
proce | edings. This |
is |
| so because, |
the transfe |
ree | company | still |
| continues. The |
applicant will |
be | free to |
pursue |
| such action |
against the tran |
sferee | company |
for |
| recovery of its |
dues, as may |
be | advised. In |
this |
view of the matter, I find no reason to recall the
order dated 18th January 2008.
in above terms.
[ A.M. KHANWILKAR, J.]
Sd/-
2 issues framed by the court
Whether the applicant is entitled to have a late-filed reply affidavit placed on record and the earlier order recalled.
Whether grievances regarding creditor dues in a company scheme requiring shareholder approval affect the proceeding.
Bilpower Ltd.
Bhavana Ashit Desai
A. M. KHANWILKAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
