Valecha Engineering Limited Vs Atlanta Limited (Formerly Know as Atlanta Infrastructure Limited)

¶1

PROD-CAL-202-14.DOC

¶2

Shephali

¶3

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION COMPANY APPLICATION (L) NO. 202 OF 2014

¶4

IN

¶5

COMPANY PETITION NO. 413 OF 2013

¶6

Valecha Engineering Limited.…Applicant
In the matter between
Atlanta Limited (Formerly known as Atlanta
Infrustructure Limited)…Petitioners
Versus
Valecha Engineering Limited.…Respondents

¶7

Mr. Clive D’Souza, for the Applicants.
Ms. Aparna Deokar, i/b M/s. M. P. Vashi & Associates, for the
Respondent/original petitioners.

¶8

CORAM:G.S. PATEL, J
DATED:7th May 2014

¶9

PC:-

¶10

1. Not on board. Mentioned. Taken on board.

¶11

2.This is an application that seeks to set aside an order of 22nd
April 2014 by which the Company Petition was admitted and
ordered to be advertised. The only ground on which this application

¶12

1 of 5

¶13

PROD-CAL-202-14.DOC

¶14

is made is that the name of the Advocate for the respondent was not
correctly shown on 22nd April 2014 on the daily lists when the
matter was taken up. As it turns out, this is an inaccurate and
misleading depiction of the events as they unfolded.

¶15

3.The petition was filed on 17th October 2013. Appearance was
entered on behalf of the Company by M/s. Deven Dwarkadas & Co..
Till March 2014, there was no affidavit in reply. On 25th March
2014, the Company Petition was listed. It was called out. Both parties
were represented through counsel. The respondent sought time to file
an affidavit in reply. Given the delay, I imposed costs of Rs. 10,000/-
as a condition precedent to granting the Company time to file its
affidavit in reply, and that was ordered to be done on or before 11th
April 2014.

¶16

4.The matter was listed on the weekly board of 22nd April 2014
to 25th April 2014 at Sr. No 213. That was a week in which only
Company Petitions for admission were being taken up and a board
was prepared for the entire week. This board was made available on
the Internet and in print on 19th April 2014, i.e, the previous
Saturday. What Mr. D’Souza, learned Advocate for the respondents
now contends that on 21st April 2014, a joint vakalatnama was filed
by Mr. Anil Dhuri and Ms. Lata Kharva on behalf of the Company,
M/s Deven Dwarkadas & Co being discharged. Mr. D’Souza says
that the names of Mr Dhuri and Ms Kharva were “not shown”; hence
this application.

¶17

5.It stands to reason that the names of Mr. Dhuri and Ms.
Kharva could not be shown. Their joint vakalatnama was filed only
the day before the matter was already listed to come up, and two days
after the list was published on 19th April 2014. At the cost of
repetition I must point out that the list for the week of 22nd to 25th

¶18

2 of 5

¶19

PROD-CAL-202-14.DOC

¶20

April 2014 was made available on 19th April 2014; the fresh
vakalatnama is said to have been filed on 21st April 2014; and it is
only on this basis that a complaint is now made that the Advocates’
names were not shown on the printed board. The suggestion is ex-
facie unreasonable, untenable and misleading. The listing was already
published in hard copy and on the Internet. It was impossible to
change it to show a new advocate engaged after that publication. It
was for Mr. Dhuri and Ms. Kharva to check the board not only for
their names (which could not possibly have been shown, and of
which they could not have been unaware) but for the matter itself.
This they did not do. It is no excuse for an advocate who comes on
record after a court list is published to say that his name was not
shown. The duty of an advocate does not rest with checking his or
her name, most especially in such circumstances.

¶21

6.On 22nd April 2014, the petition was taken up. Mr. Dhuri
and Ms. Kharva having failed to take the most elementary care and
precaution, remained absent. The respondents were unrepresented.
An order came to be passed.

¶22

7.It then seems that Mr. D’Souza filed his vakalatnama replacing
the one filed jointly by Mr. Dhuri and Ms. Kharva. Although the
costs attendant to the filing of the affidavit in reply were paid, for
reasons that are not satisfactorily explained, no affidavit in reply was
filed by the date stipulated in my order of 25th March 2014.

¶23

8.In order to leave Mr. D’Souza no scope for grievance, although
I have not the slightest hesitation in holding that the present
application is entirely without merit, and deserves to be dismissed
with costs, I allowed Mr. D’Souza proceed to argue the matter on
merits immediately, on the basis that should he make out a valid
defence of merits, I would then allow the application. I have given

¶24

3 of 5

¶25

PROD-CAL-202-14.DOC

¶26

him an opportunity today of responding to the petition on merits and
even referring to the affidavit in reply that has since been annexed to
the affidavit in support of the Company Application, treating it for
this purpose as an affidavit in reply to the petition.

¶27

9.I do not propose to revisit the facts of the matter in their
entirety. This much is sufficent:

¶28

(a) The contract was for the hire of a hydraulic piling Rig HR 130 for deployment of the Company’s site in Delhi, Orissa and Chennai. The terms of hire required the Company to pay Rs. 9 lakhs per months plus service tax to the petitioner.

¶29

(b)There was admittedly no reply to the statutory notice.
What Mr. D’Souza contends is that the rigs were
defective. There was frequent breakdowns. The
Company has suffered significant loss. None of this was
stated in reply to the statutory notice. None of this is
stated in a single piece of correspondence prior to the
filing of petition. It finds place for the first time in the
affidavit in reply. The allegations in the affidavit in reply
are entirely without particulars.

¶30

(c)Mr. D’Souza points to log sheets annexed to the
petition, to show that there were breakdowns. Far from
assisting Mr. D’Souza, this is actually against him. The
petitioners have made no attempt to hold back or
conceal these log sheets. In the various letters sent by the
petitioners to the Company demanding payment, there
is no response saying that the amount is not payable
because of frequent breakdowns. In fact, paragraph 8 of

¶31

4 of 5

¶32

PROD-CAL-202-14.DOC

¶33

the petition is a complete answer to this false, frivolous
and untenable defence. For, in that paragraph, the
petitioner has clearly set out that the Company has
made payment of approximately Rs. 10 Lakhs during
the relevant period and the claim is for the balance plus
additional charges.

¶34

10.There is absolutely no defence to the petition. To my mind,
this is precisely the time of defence that the Supreme Court in the
case of IBA Health (India) Private Limited V Info-Drive Systems Sdn
Bhd1 says ought not ever to be countenanced. It is the purest
moonshine. It is speculative, specious, spurious, and wholly lacking in
bona fides and substance.

¶35

11.The Application is without merit. Worse, it is deliberately
misleading. Given the reasons cited in the application, the Company
shall pay costs quantified at Rs.75,000/- to the petitioner within a
period of two weeks from today.

¶36

(G. S. PATEL, J.)

¶37

1 (2010) 10 SCC 553

¶38

5 of 5

Valecha Engineering Limited v. Atlanta Limited (Formerly Know as Atlanta Infrastructure Limited)

Case brief

What is this about?

What did the court decide?

Valecha Engineering Limited v. Atlanta Limited (Formerly Know as Atlanta Infrastructure Limited)

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Veekay Lal Invesstment Co.Pvt.Ltd.and Anr. Vs Holiness Shrimant Sudhindra Tirth Swamji of Sanmasthan Kashiram and Ors.

Seema Arvind Vij and 2 Others Vs Autograph Cars (India) Pvt. Ltd. - U50100MH2005FTC150474

Arun Varun Trade and Investment Ltd. Vs Mantry Realty Ltd. (Formerly Known as Sunil Mantry Realty Ltd.)

Syngenta India Limited (Cin U24210PN2000PLC135336) Vs -

Mr.Ashok H. Bhatia and Anr. Vs the Official Liquidator of M/S.Victory Genset Pvt.Ltd.

State Bank of India Vs the Official Liquidator, High Court Bombay