(Judgment of the Court was delivered by M.CHOCKALINGAM, J.) Challenge is made to an order of the learned Single Judge of this Court in C.A.No.1736/2007 in C.P.No.26/2005.
2.It is not in controversy that in the winding up proceedings in CP No.26/2005, the appellant was set ex-parte by an order dated 13.3.2007. The appellant made an application to set it aside. The learned Single Judge after appraisement of the facts and circumstances, thought it fit to set it aside, and accordingly made the order which is the subject matter of challenge before this Court.
3.The learned Counsel for the appellant would urge that it is an admitted position that notice was actually served upon the first respondent, and despite the same, he has not cared to appear before the Court; that when there was no proper and valid reasons for setting aside the same, the learned Single Judge has set aside, and hence the order has got to be set aside.
4.The Court heard the learned Counsel for the respondents and also looked into the materials available.
5.It is not in controversy that the ex-parte order came to be passed on 13.3.2007 pending the winding up proceedings in the said company petition. What was all contended by the first respondent before the learned Single Judge was that pending the company petition before the Court, the first respondent had taken all steps to revive the company; that it was actually in the process; that it was a crucial time when the order came to be passed setting him ex-parte; that he has also paid a sum of Rs.70 lakhs to the IDBI, and also number of secured creditors was actually settled; that at that juncture, if the ex-parte order was to be continued, it would cause irreparable damage to the steps taken by him for the revival of the company, and under the circumstances an opportunity should be given to him to put forth his case. When such contentions were urged before the learned Single Judge, the learned Single Judge thought it fit that an opportunity should be given to him. It is true that the ex-parte order has been passed against him. But the circumstances in a given case like this, do warrant for giving an opportunity to the first respondent. This Court feels that is not a fit case where the order of the learned Single Judge could be disturbed.
6.In the result this original side appeal fails, and the same is dismissed leaving the parties to bear their costs.
(M.C.,J.) (R.P.S.,J.) 3-9-2009 Index: yes Internet: yes nsv M.CHOCKALINGAM, J.
AND R.SUBBIAH, J.
nsv To:
1.The Official Liquidator High Court, Chennai As Liquidator of M/s.Vigneshwara Cotton Mills (In Liquidation) and others
2.The Chairman & M.D.
IDBI, IDBI Tower, Cuffe Parade Mumbai.
3.The Director of Income Tax (R) Mayor Bhawan, 6th Floor, New Delhi 110 001.
4.The Secretary Government of Tamil Nadu Handicrafts Handlooms Textiles & Khadi Craft Fort St. George, Chennai 600 009.
5.The CPFC, "HUDCO VISHALA", 14, Bhikaji Camaplace R.K.Puram, New Delhi 110 066.
6.The Director General ESIC, ESIC Regional Office Rajendra Place Rajendra Bhawan, New Delhi OSA No.89 of 2008 Dt: 3-9-2009