JUDGMENT Hon’ble 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 judgement 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. 3. 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 authorised 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. 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. 4. 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. 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. 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 and another) nor any explanation for condoning the delay is given as per ratio of AIR 1998 SC 2276 (P.K. Ramachandran v. State of Kerala and another). 5. Against this background, we have gone through the judgement 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 and others), whereunder the order of the learned Single Judge was set aside. The operative part of the judgement 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.” 6. 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. 7. According to us, it is clear from the aforesaid discussion that the restoration application, as made by the applicant-appellant herein, is not at all an innocent approach of a victim of the circumstances. The applicant-appellant made allegation against his own local Counsel, who was elevated to the Bench long before i.e. on 7th January, 2004 as per the record. 7. According to us, it is clear from the aforesaid discussion that the restoration application, as made by the applicant-appellant herein, is not at all an innocent approach of a victim of the circumstances. The applicant-appellant made allegation against his own local Counsel, who was elevated to the Bench long before i.e. on 7th January, 2004 as per the record. In such circumstances, it is unbelievable that a diligent litigant will not contact with him to have the necessary papers of the case and will not take steps for change of Vakalatnama in favour of somebody else from 7th January, 2004 to 5th December, 2006 when the appeals were ultimately dismissed and even thereafter. It is to be remembered carefully that the applicant-appellant is not a rustic villager but a company well equipped with the battery of learned lawyers. Therefore, ignorance of elevation of their Counsel to the Bench from 7th January, 2004 till the date of dismissal of the appeals on 5th December, 2006 and even thereafter seems to be lame excuse particularly when another local Counsel Mr. H.N. Shukla was available at least for the purpose of taking informations about the position of such special appeal. The practice of the Court is that in case of non-appearance of the sole Counsel on behalf of the party or parties, a direction is given by the Court to the department to issue a notice directly upon the litigant/s about the appearance in the case. This is not such a case since the learned Counsel, who was elevated to the Bench, was not the sole Counsel. Moreover, alongwith his name, the names of Mr. H.N. Shukla, Ms. Geeta Luthra, Mr. Vipin Sinha and Ms. Madhu Tiwari, learned Advocates, were also appearing in the cause list as learned Counsel for the appellant/s. It is also unbelievable story that in spite of elevation of the learned Counsel to the Bench, he had not returned the necessary papers to the applicant-appellant. This is not the practice of any lawyer to hold the brief of his clients after elevation to the Bench because such brief cannot have any face value to him. Except in rarest of the rare cases that too for some specific purpose and for a brief period, a lawyer normally returns briefs to the respective clients immediately after elevation. This is not the practice of any lawyer to hold the brief of his clients after elevation to the Bench because such brief cannot have any face value to him. Except in rarest of the rare cases that too for some specific purpose and for a brief period, a lawyer normally returns briefs to the respective clients immediately after elevation. It is impossible to believe that a Judge even after his elevation will hold the brief unnecessarily for about 3-4 years. Moreover, it is duty of a litigant to contact with him and remind immediately after elevation to return the necessary papers. In that way, the allegation is really reckless in nature. The law helps those who are alert and not those who sleep on their rights following the maxim of vigilantibus et non dormientibus jura subveniunt. On the other hand, if the real intention of the applicant-appellant is not to get a gate-pass to enter into the proceeding for sale before the Court of company jurisdiction, there is no need to follow the circuitous way. There is a gulf difference between the contesting parties and intending purchasers. No intending purchaser, whose intention is clear, can be deprived from participating in a process of sale by the competent Court of company jurisdiction to fetch the better price till the confirmation of sale by the Court and delivery of possession. It is duly incumbent upon the Court of company affairs to make an effort to get best possible price. Sometimes sale can also be reopened even after confirmation on the particular facts and circumstances. Neither any rejection of offer of any intending purchaser at a stage can be construed as infructuous effort subsequently if the intention is clear nor acceptance of offer of any intending purchaser can be construed as automatic confirmation. When the learned Counsel appearing for the Official Liquidator relied upon AIR 2000 SC 2346 : 2000 (6) SCC 69 , Divya Manufacturing Co. (P) Ltd. v. Union Bank of India and AIR 1970 SC 2037 , Navalkha and Sons v. Sri Ramanya Das and others, the learned Counsel appearing for the respondent/purchaser relied upon 2006 (9) SCC 354 , President, SIUC v. State of Kerala and others, on the rival contentions. (P) Ltd. v. Union Bank of India and AIR 1970 SC 2037 , Navalkha and Sons v. Sri Ramanya Das and others, the learned Counsel appearing for the respondent/purchaser relied upon 2006 (9) SCC 354 , President, SIUC v. State of Kerala and others, on the rival contentions. According to us, it is exclusive domain of the learned Judge taking the matters relating to company affairs at what stage it will stop further negotiation for confirmation of sale and handing over possession. Therefore, neither of the parties can be deprived of hearing by such Court. 8. Thus, in totality we do not find any merit in the applications for restoration nor those are backed by any sufficient cause. Therefore, upon condoning the delay, we dismiss both the applications. 9. However, no order is passed as to costs. 10. In any event, passing of this order will neither influence nor debar the Court of company jurisdiction to independently test the bonafide of any intending purchaser to get the best possible price before confirmation of sale and handing over possession. Honble V.C. Misra, J.—I agree. ————