IN THE HIGH COURT OF JUDICATURE AT MADRAS Date:- 06.01.2010 Coram The Honourable Mr. Justice M. CHOCKALINGAM and The Honourable Mr. Justice T. RAJA O.S.A. No.349 of 2009 M/s. India Cements Capitals & Finance Ltd., (Formerly Aruna Sugars Finance Ltd.) ... Appellant ..Vs.. M/s. Mares Confectioneries Pvt. Ltd. ... Respondent Original Side Appeal filed against the order dated 28.10.2008 passed in C.P.D. No.3085 of 2004 on the file of this Court. For Appellant : Ms. Jayanthi Venkatesh For Respondent : Mr. S. Anil Sandeep JUDGMENT
(Judgment was delivered by M. CHOCKALINGAM, J.)
This appeal has been filed, challenging the order of the learned Single Judge, dismissing the petition in C.P.D. No.3085 of 2004 to condone the period between 2004 and 2008 in representing the petition for winding up.
2. The Court heard the learned counsel appearing for either side.
3. Learned counsel appearing for the appellant would submit that the winding up petition was filed within time, but there was a delay in representation. It is true, there was a delay of four years, but it was due to the reason that the appellant was to get necessary R.O.C. and other documents and in that process, the delay has occurred. Learned counsel further submitted that during the period of delay in representation, the appellant is ready to give up the interest also and it has got to be considered. If the order of the learned Single Judge is affirmed, it would cause much hardship and prejudice to the interest of the appellant and hence it has got to be considered sympathetically, since the delay has occasioned in representation.
4. Per contra, learned counsel appearing for the respondent would submit that two agreements were entered into between the parties in 1997 and statutory notice was issued in 2001 and the application for winding up was filed in 2002 and the same was returned for rectification of mistake in 2004, but the same was represented in 2008. It is not correct on the part of the appellant that the documents were to be obtained and in that process, the delay has occurred since the document was received in the year 2002 itself and thus, the petition, though for representation, has got to be dismissed.
5. The Court paid its anxious considerations on the submissions made by either side. Insofar as the agreements entered into between the parties and the statutory notice are concerned, whether the claim was within time or not is the merits of the matter to be considered by the learned Single Judge. The scope of the appeal is only to condone the delay that has occasioned in representation of the winding up petition.
6. Now, at this stage, learned counsel appearing for the appellant brought to the notice of this Court that the delay has occasioned in securing the documents. Representation has to be done by the counsel only. Under such circumstances, the Court is of the considered opinion that the petition could be allowed by condoning the delay. It is also made clear that during the period of delay in representation, the appellant was not entitled to claim interest on the claim and accordingly, the Original Side Appeal is allowed. No costs.
ssa.
To
The Sub Assistant Registrar
(Original Side),
High Court,
Madras