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1999 DIGILAW 428 (KAR)

AGGARWAL GRANITE EXPORTS LIMITED, BANGALORE v. SOUTH INDIA GRANITE COMPANY (PRIVATE) LIMITED, BANGALORE

1999-08-06

M.F.SALDANHA

body1999
( 1 ) THE original Company Petition No. 63 of 1997 was filed on 16-6-1997 and the petitioner had prayed for an order of winding up on the usual ground that the respondents have failed and neglected to discharge their debts and are incapable of doing so. The record indicates that this proceeding was dragged on for one and half years and the order sheet is quite eloquent. These winding up proceedings are virtually expeditious remedies and the law presupposes the fact that a party who is genuinely aggrieved will act in consonance with the spirit of the law. Where a winding up proceeding is dragged on by the petitioners themselves for one and half years at the admission stage itself, it is indicative of how serious the party is or rather how not very serious the party is. This is a field of litigation in which the Courts are over burdened and when the very party who approaches the Court displays an attitude of this type, it would be well within the framework of law to dismiss the petition on the ground of want of diligence in prosecution and leave the parties to formal recovery methods if they are interested in adopting them. ( 2 ) THERE is a class of litigants who also specialise in playing ducks and drakes with their advocates and the Courts. In this case finally on 9-12-1998 the petitioners learned Advocate informed the Court that they were helpless because the clients had taken away the papers stating that they would make their own arrangements. It was obligatory on the part of the petitioners when they took the records back from their previous Advocates to have ascertained when the case was coming up and in any event to have made alternate arrangements if they desired to prosecute the proceeding. This was not done and this Court needs to take serious view of the fact that litigants who change their lawyers for whatever reason, even though they have the right to do so, will not be shown any special indulgence by the Court unless the change is made in such a manner that it does not affect the timeframe and the hearing of the case before the Court. The order passed by me on 9-12-1998 very clearly indicates the reasons for the dismissal namely that the petitioners had taken away the papers from their previous Advocates that they had not made any alternate arrangement and that nobody had represented them even in person on that date. The petition was therefore dismissed. The petitioners learned Advocate points out to me that the petitioners had taken back the records from their previous Advocates on 7-12-1998 after which they engaged the present learned Advocates who entered appearance on 14-12-1998 by which time, on 9-12-1998 the petition had already been dismissed. The request is that the case be restored and that the same be heard on merits. The application has been opposed by the respondents who submit that the petitioners are only dilating the litigation by adopting these tactics that the proceeding was instituted only in order to pressurise them and that consequently the same should not be restored. ( 3 ) I refrain from making any observation with regard to the merits of the case because neither of the parties should either be prejudiced or benefited. The short question is whether the proceeding is to be restored having regard to the aforesaid situation. I have pointed out to the petitioner's learned Advocate that this is not a dismissal on merits and that consequently, nothing prevented the petitioner's from reinstituting the proceeding if the law permits or from instituting other proceedings. His submission is that since the timeframe was so short namely that the dismissal order was passed only two days after the petitioners took back the papers from their previous advocate that this Court should make allowance in this case. Unfortunately, that is not the issue for consideration because the petition was originally filed in June 1997 and had been protracted through several dates of hearing for one and half years. At one stage, the proceedings were adjourned for six months obviously for purposes of settlement despite which nothing transpired. If the petitioners were really interested in the litigation, they should have expeditiously prosecuted the same instead of which, after a lapse of one and half years they indulged in the luxury of changing their Advocates. At one stage, the proceedings were adjourned for six months obviously for purposes of settlement despite which nothing transpired. If the petitioners were really interested in the litigation, they should have expeditiously prosecuted the same instead of which, after a lapse of one and half years they indulged in the luxury of changing their Advocates. When this was done, it was obligatory on their part to have ensured that either the change took place immediately and more importantly that they took note from whatever quarters were necessary of when the case was coming up for hearing. It is clear to me since none of this was done that the petitioners are lacking in bona fides and in this background I see no good ground for restoring the proceeding. ( 4 ) HAVING regard to this position, the application for restoration fails and stands dismissed. I however, clarify that the order dated 9-12-1998 is not an order of dismissal on merits but is only an order of dismissal for default. The petitioners learned Advocate has requested for leave to present a fresh petition. I have already clarified that the petitioners are free to do so provided the law so permits.