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Gujarat High Court · body

2016 DIGILAW 1587 (GUJ)

Manager, Maharashtra State Financial Corporation Ltd. v. Goodearth Industries Ltd.

2016-08-02

ABHILASHA KUMARI

body2016
JUDGMENT : Abhilasha Kumari, J. 1. This application has been preferred by the applicant-Maharashtra State Financial Corporation Limited with a prayer to review/recall the order dated 06.01.2016, passed by this Court in Official Liquidator's Report No. 80 of 2015 in Company Petition No. 271 of 1996, qua the direction to the applicant to refund an amount of Rs. 4,82,953/- along with interest at the rate of 6% from the date of the receipt of the above amount, in terms of the ratio worked out by M/s. Bhavesh Shah & Co., Chartered Accountants, within a period of eight weeks from the date of the order. 2. Mr. A.S. Asthavadi, learned advocate for the applicant, has submitted that this Court had issued notice to the respondents in Official Liquidator's Report No. 80 of 2015 and, accordingly, the applicant (original respondent No. 3) was also served with the notice of the Court. On receipt of the notice, the applicant had issued a letter dated 14.08.2015 to him. However, this letter was never received by him as he had changed his residential address and the letter had been posted at the old address. In view of the above, the applicant was unable to place its case before the Court, when the order dated 06.01.2016 was passed. 2.1 It is further submitted that as the said order has been passed without hearing the applicant, the direction qua the applicant, for the refund of the amount, may be recalled. 3. Mr. J.S. Yadav, learned advocate for respondent No. 1 Official Liquidator, has strongly opposed the application by submitting that the applicant was served with the notice of this Court but has chosen not to appear, for reasons best known to it. 3.1 It is further submitted that this Court has granted several opportunities to the applicant in order to appear and defend the matter, as is evident from the various orders passed in the Official Liquidator's Report. The excuse that the letter dated 14.08.2015 addressed by the applicant to its advocate, Shri A.S. Asthavadi, did not reach him is not a convincing one, as the mobile number of the learned advocate is written on the copy of the letter that is annexed as Annexure-B to the application. The excuse that the letter dated 14.08.2015 addressed by the applicant to its advocate, Shri A.S. Asthavadi, did not reach him is not a convincing one, as the mobile number of the learned advocate is written on the copy of the letter that is annexed as Annexure-B to the application. Had it been the intention of the applicant to instruct the learned advocate to appear and defend the matter, nothing had prevented it from calling the advocate on the said mobile number, which has not changed. 3.2 It is further submitted that in the letter dated 14.08.2015, there are no instructions to the learned advocate to appear on behalf of the applicant or to file the Vakalatnama. In this view of the matter, it cannot be said that the applicant has taken any effective or concrete steps to defend itself, after being served with the notice of the Court. 3.3 Mr. J.S. Yadav, learned advocate, has further submitted that respondent No. 2, the Karnataka Bank Limited has already refunded the amount of Rs. 5,08,840/-, with interest, upon receipt of the order of this Court. The said Bank had also not chosen to appear but has obeyed the order of the Court. 3.4 It is further submitted that though the application has been styled as one for review of the order, no grounds for review are made out. There is no error apparent on the face of the order and as none has been pointed out, therefore, the application be rejected. 4. Mr. B.H. Bhagat, learned advocate for respondent No. 2 IDBI Bank, has adopted the arguments advanced by the learned advocate for the Official Liquidator. 5. Mr. Anip A. Gandhi, learned advocate for respondent No. 4 HDFC Bank, has also prayed for the dismissal of the application on the ground that no grounds for review of the order are made out. 6. This Court has heard learned counsel for the respective parties, perused the averments made in the application as well as the record of Official Liquidator's Report No. 80 of 2015. A perusal of the orders passed in the Official Liquidator's Report makes it amply clear that notice in the Report was issued on 23.07.2015. Thereafter, on 07.09.2015, fresh notice was issued to respondent No. 2 - Karnataka Bank Limited. A perusal of the orders passed in the Official Liquidator's Report makes it amply clear that notice in the Report was issued on 23.07.2015. Thereafter, on 07.09.2015, fresh notice was issued to respondent No. 2 - Karnataka Bank Limited. It may be noted that the applicant herein, Maharashtra State Financial Corporation Limited, who was respondent No. 3 in the said Official Liquidator's Report, had already been served with the notice of this Court. On 20.10.2015, again, fresh notice was issued to respondent No. 2- Karnataka Bank Limited, which was served. However, neither respondent No. 2, nor the present applicant (respondent No. 3), chose to appear before the Court, in spite of service of notice. 7. In Paragraph-3 of the order dated 11.12.2015, passed by this court in Official Liquidator's Report No. 80 of 2015, it is stated as below: "3. The endorsement on the board indicates that respondent No. 2, has been served by direct service and respondent No. 3, has been served in the normal manner. Neither of the said respondents are represented by an advocate today and neither has any request been made on their behalf by any other person." 8. Another opportunity was granted to respondents Nos. 2 and 3 in order to appear and the Official Liquidator's Report was directed to be listed on 06.01.2016. On that date, the same situation prevailed and neither respondent No. 2 nor the present applicant (respondent No. 3) appeared. After the passing of the order dated 06.01.2016 under the circumstances stated hereinabove, the applicant has now chosen to file the present application for the review of the said order. 9. The only ground that has been stated in the application for the review of the said order is that, the letter dated 14.08.2015 addressed by the applicant to Mr. A.S. Asthavadi, learned advocate, never reached him, therefore, the applicant could not be represented before the Court and the order came to be passed without hearing the applicant. A copy of the letter dated 14.08.2015 has been placed on record as Annexure-B to the application. As rightly stated by Mr. J.S. Yadav, learned advocate for the Official Liquidator, the mobile number of Mr. A.S. Asthavadi, learned advocate, has been written on the said letter. Even assuming that the letter did not reach Mr. A copy of the letter dated 14.08.2015 has been placed on record as Annexure-B to the application. As rightly stated by Mr. J.S. Yadav, learned advocate for the Official Liquidator, the mobile number of Mr. A.S. Asthavadi, learned advocate, has been written on the said letter. Even assuming that the letter did not reach Mr. Asthavadi due to the change in his residential address, the applicant could easily have contacted him by calling him on the mobile number. Upon a query from this Court, Mr. A.S. Asthavadi, learned advocate, has submitted that his mobile number is still the same. Further, the contents of the letter dated 14.08.2015 make interesting reading. This letter has obviously been written after the receipt of the notice issued by this Court. It reads as under: "In the captioned matter, we have received order of Hon'ble High Court, Gujarat Ahmedabad. We forward the same to you for your information. We kindly request you to inform us further development in the matter. Thanking you, Yours faithfully Asstt. Manager (Law)" 10. As can be seem from the above, the letter only states that they have received an order of the High Court, which is forwarded to learned advocate for information. The applicant has merely asked the learned advocate to inform it of further developments in the matter. The applicant has not asked the learned advocate to appear on its behalf or file a Vakalatnama in the matter. Neither has the applicant asked the learned advocate for file a reply. Therefore, the intention of the applicant appears only to 'inform' the learned advocate regarding the order of the Court and to ask him to inform the applicant of further developments. A "wait and watch" policy has been adopted by the applicant but no instructions have been given to the learned advocate to actually appear in the matter or represent the applicant before the Court. In this view of the matter, whether the said letter reached the learned advocate or not, pales into insignificance, as the learned advocate has never been instructed to appear on behalf of the applicant before this Court and no Vakalatnama is sent. 11. The applicant was very well aware of the proceedings before this Court, which is clear from its own letter dated 14.08.2015. It has chosen not to appear, or instruct the learned advocate to appear. 11. The applicant was very well aware of the proceedings before this Court, which is clear from its own letter dated 14.08.2015. It has chosen not to appear, or instruct the learned advocate to appear. Without specific instructions, the learned advocate would not be in a position to appear before the Court and defend the application. Further, the applicant has remained unconcerned and has never inquired about the matter by calling the learned advocate on his mobile. 12. This Court has passed the order dated 06.01.2016 after granting several opportunities to the applicant to appear and defend the application, but the applicant never appeared. The applicant cannot blame anyone else but itself, for its conduct. 13. Even otherwise, there is no error apparent on the face of the order passed by this Court. No ground, whatsoever, for the review of the order of this Court exists. 14. The application is devoid of merit and deserves to be rejected. It is, accordingly, rejected.