- (1.) AMITAVA Lala, J. Since both the aforesaid restoration applications are based on almost similar set of facts and circumstances and have been heard analogously, therefore, same are decided by this common judgment and order having binding effect upon both the matters taking the restoration application in Special Appeal No. 153 of 2001 as leading one.
(2.) THIS is an application dated 10th July, 2007 for recalling the order dated 5th December, 2006, by which concerned special appeal was dismissed and interim order, if any, in connection thereto was vacated. The application was made without any cogent explanation on account of delay and sufficient cause for non- appearance on the fateful day when the special appeal was dismissed. However, leave was granted by this Court on 12th July, 2007 to file a supplementary affidavit giving better explanation. Even thereafter the supplementary affidavit has been filed with several mistakes like blanks in respect of the numbers, dates, etc. That apart the supplementary affidavit is full of explanations about the merit and reckless statements. Fact remains that one of the Hon'ble sitting Judge of this High Court, while he was learned Member of the Bar, was holding brief on behalf of the applicant-appellant and appearing in the matter alongwith Ms. Geeta Luthra and Mr. H. N. Shukla, learned Advocates. Neither the applicant-appellant had any information about elevation of their Counsel in the Bench nor the brief had been returned by such Counsel from the date of his elevation. Ms. Geeta Luthra, learned Advocate, who was authorized to look after the matter, is a resident of Delhi, thereby she is an outstation Counsel, who had no independent knowledge. Mr. H. N. Shukla, Advocate, was not given an independent instruction to appear in the matter and as such he did not appear in the matter. To the best of knowledge of the deponent, Mr. H. N. Shukla may be associated with the local Counsel but he never appeared independently nor signed any Vakalatnama. As per the last information from the local Counsel, the special appeals were taken up on 30th November, 2002. The applicant-appellant had been informed by the local Counsel that as and when the appeals would be taken up for hearing, they would be informed by him. In absence of the local Counsel the applicant/appellant-company was deprived of information of the developments including dismissal of the appeals on 5th December, 2006. Eventually they have come to know about the status after dismissal of the appeals due to non-appearance only on 23rd May, 2007. It has been further contended that on 15th May, 2007 the applicant-appellant enquired from the outstation Counsel regarding status of the appeals. On 22nd May, 2007 it has come to know that the appeals were dismissed for non-prosecution on 5th December, 2006. The applicant-appellant made the application for restoration of appeals without any application for condoning the delay on 24th May, 2007. The application was despatched on or about 26th May, 2007 alongwith Vakalatnama of a newly engaged Counsel Mr. Anurag Asthana. He received the papers on 28/29th May, 2007. Unfortunately, the Court was closed due to summer vacation on 26th May, 2007. Therefore, after completing all the formalities the application for restoration of the present appeal duly supported with the affidavit was filed on 10th July, 2007. Since the application was made within thirty days from the date of knowledge of dismissal of appeal, the delay, if any, in making the application can be condoned. The contesting respondent, being respondent No. 2, namely one Sri Vishnu Kant Gupta, contended before this Court that recalling of the order of dismissal dated 5th December, 2006 and restoration of the Special Appeal No. 153 of 2001 is a tactical ploy on the part of the applicant-appellant i. e. one M/s. Hanuman Industries India Pvt. Ltd. Both of them participated in a bid in purchasing a sugar mill before the learned Judge taking the matters relating to company affairs. By an order dated 31st January, 2001 his offer was accepted and the offer of the applicant-appellant was rejected. The appeals arose from such order. The present appeals were dismissed on 5th December, 2006 when this respondent deposited a sum of Rs. 1. 5 crores towards bid money. However, again the matter was taken up by another learned Single Judge taking the matters relating to company affairs on 12th February, 2007, and considering the cause of various bidders the learned Judge directed the Official Liquidator to advertise in the leading newspapers inviting fresh bids, other than the bids which were received in the Court. The Official Liquidator was directed to fix a date for inspection. All the bidders present, including the respondent herein, were directed to deposit an amount of Rs. 5 Crores by demand draft in favour of the Official Liquidator payable at Allahabad on or before 12th March, 2007. It was further directed that the advertisement will also indicate that any person willing to participate in the process of bidding may deposit Rs. 5 crores with the Official Liquidator on or before such date upto 5. 00 p. m. Against such order another special appeal was filed by the respondent, being Special Appeal No. 232 of 2007, Sri Vishnu Kant Gupta v. Official Liquidator. Such special appeal was allowed on 21st May, 2007 and the order of the learned Single Judge was set aside. The learned Judge taking matters relating to company affairs allowed on 23rd May, 2007 one month time to this respondent to make payment. On 24th May, 2007 the affidavit has been sworn by the applicant-appellant in Kolkata deliberately making allegations about the lack of materials and dates. On 6th June, 2007 this respondent deposited the entire remaining balance of Rs. 3. 5 crores plus interest. On 2nd July, 2007 learned Counsel for the applicant-appellant appeared in another appeal, being Special Appeal No. 233 of 2007, filed against the same order dated 12th February, 2007 regarding revaluation of one unit of the concerned sugar mill representing the appellant company. On 11th July, 2007 the sale confirmation proceedings got adjourned by the applicant-appellant on the ground of pendency of the present restoration application. Therefore, the applicant- appellant has taken all possible steps before different Benches. Hence, it is clear that the applicant-appellant is not the innocent victim but abuser of the process of law. That apart neither the affidavit/s in support of the restoration application/s is/are verified to constitute evidence as per ratio of AIR 1970 SC 652, A. K. K. Nambiar v. Union of India & Anr. , nor any explanation for condoning the delay is given as per ratio of 1997 (2) JCLR 871 (SC) : AIR 1998 SC 2276, P. K. Ramachandran v. State of Kerala & Anr. .
(3.) AGAINST this background, we have gone through the judgment of the Division Bench of this Court dated 21st May, 2007 passed in Special Appeal No. 232 of 2007, Sri Vishnu Kant Gupta v. Official Liquidator & Ors. , whereunder the order of the learned Single Judge was set aside. The operative part of the judgment of the Division Bench of this Court is as follows : "in the circumstances, this appeal is allowed. The impugned order dated 12-2-2007 is set aside. All relevant parties are represented in this appeal, and they are put to notice that the office is being hereby directed to place the matter before the learned Company Judge again for appropriate orders on 23-5- 2007 or on the next date of his availability thereafter, if the learned Judge is not available on 23-5-2007. Certified copy of this order be issued, on application and payment of requisite charges today. " Both the Official Liquidator and IFCI, being secured creditor, were present before this Court. Learned Counsel appearing for IFCI contended that a special leave petition has been filed from such order dated 21st May, 2007 before the Supreme Court.;