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2004 DIGILAW 421 (GUJ)

Shailendra Kanh Beharilal Agrawal v. Surat Dyes

2004-07-02

B.J.SHETHNA

body2004
ORDER : B.J. Shethna, J. Learned counsel Mr. Sudhir Nanavati for the appellants submitted that the learned Company Judge committed an error in observing in para 10.1 of his order' On perusal of record produced by the learned advocate for Registrar of Companies, it becomes apparent that the said declaration has been submitted with the Office of the Registrar of Companies only on 29.7.2003'. 2. Mr. Nanavati submitted that in fact the declaration was submitted in the office of Registrar of Companies on 2.7.2003 and not on 29.7.2003 as observed by the learned company Judge in order dated 7.5.2004. In support of his contention, Mr. Nanavati has relied upon an affidavit dated 1.7.2004 filed by Mr. Dhiren R. Dave, Company Secretary and the duplicate with the acknowledgment of the Registrar of Companies, Gujarat at Ahmedabad dated 2.7.2003. We had asked learned counsel Mr. Nanavati as to why this was not produced before the learned company Judge? To which learned counsel Mr. Nanavati submitted that the matter was heard on 6 and 7 May 2004 i.e. on the last dates before the summer vacation and the learned counsel appeared before the learned company Judge did asked for time, but the learned Company Judge did not grant any time and proceeded to pass the order on the basis of the record produced by the learned counsel appearing for the Registrar of Companies. However, Ms. Swati Soparkar appearing for the respondent No. 1 on caveat controverted this statement made at the Bar by learned counsel Mr. Nanavati for the appellants. She submitted that the present appellants were duly served with notice of this court in the company application filed by them. Not only that they had filed their appearance and also filed detailed reply to the application way back on 30.4.2004, but this was not made clear. Be that as it may. 3. In view of the above controversy, learned counsel Mr. Nanavati for the appellants seeks permission to withdraw this appeal, at this stage, with a liberty to approach the learned company Judge by way of review application, with a request that the directions issued by the learned Company judge in paras 13 and 14 of order dated 7.5.2004 be stayed till the learned Company Judge decides their review application. Mr. Nanavati for the appellants seeks permission to withdraw this appeal, at this stage, with a liberty to approach the learned company Judge by way of review application, with a request that the directions issued by the learned Company judge in paras 13 and 14 of order dated 7.5.2004 be stayed till the learned Company Judge decides their review application. Mr. Nanavati further submitted that by now the review application has become time barred, therefore, the learned Company Judge be directed to entertain the review application on merits by condoning delay in filing the review application late. 4. It is true that by now review application has become time barred, therefore, the appellants will have to approach the learned Company Judge with an application for condonation of delay in filing the review application late before him. However, we are of the considered opinion that no such directions can be issued to the learned Company Judge for condoning the delay in filing the review application late and decide the same in accordance with law. Instead of issuing such directions, we are of the considered opinion that if the review application is filed within one week from today along with the application for condonation of delay in filing the review application late by pointing out the cause for delay in filing the review application late, then we are sure that the learned Company Judge will consider it and pass appropriate order on it and try to decide the review application on merits. 5. With these observations, permission to the appellants to withdraw this appeal, at this stage, is granted. If the review application is filed along with the application for condonation of delay within a period of one week from today then the directions issued by the learned company Judge in paras 13 and 14 of order dated 7.5.2004 in Company Application No. 42 of 2004 shall remain stayed for a period of one month from today. Thereafter it would be open to the present appellants to move the company Judge for passing appropriate orders in their review application. 6. With these observations and directions, this appeal stands dismissed as withdrawn. 7. Civil Application filed in this appeal is dismissed as the main appeal is dismissed as withdrawn.