M/S. Aziz Plastic Industries & ... vs State Of U.P. & Others

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

									           AFR
 
Court No. 03
 
Civil Misc. Recall Application No. 77688 of 2011
 
In 
 
CIVIL MISC. WRIT PETITION NO.  25644 of 1999
 

 
M/s Aziz Plastic Industries and another..........			Petitioners.
 
Vs. 
 
State of U.P. and others                        ...........			Respondents.
 

 
Present:
 
(Hon'ble Mr. Justice Amitava Lala and Hon'ble Mr. Justice Ashok Srivastava)
 
Appearance
 
	For the petitioner		:       Mr. M.D.Singh Shekhar,  Senior Advocate, 					        Mr. C.B.Yadav, Senior Advocate, Mr. Amit 			                             Saxena and Mr. Vivekanand Yadav. 
 

 
	For the respondents	:       Mr. W.H.Khan, Senior Advocate, Mr. S.
 
					        Chaturvedi, Mr. S. Agrawal, Mr. J.A. Khan,
 
					         Mr. A.A.Khan and Standing Counsel.
 
							
 
Amitava Lala, J.:--   This is an application for recalling the order dated 22nd  October, 2009 passed by this Court  under which the writ petition has been dismissed as infructuous and the interim order has been vacated.
 
	On 10th March, 2011 after about a period of 17 months from the date of passing the order,  petitioners have filed this application for recalling the order dated 22nd October, 2009 alongwith application for condoning the delay  taking an usual defence that in the month of November, 2009 all of a sudden, the petitioner no.2, deponent herein had to  go to Mumbai for his treatment and remained there for a period of one year and in February, 2011 when he came back to Allahabad and in the fourth  week of February, 2011 he wanted to get information from the clerk of the concerned Counsel and came to know that the writ petition was already dismissed as infructuous, therefore, the delay may be condoned and earlier order may be recalled and the writ petition be restored in its file. 
 
	Firstly, according to us, petitioner no.1 is a partnership firm and the petitioner no .2 is a partner of the said firm.  It is well settled by now that a company, firm or organisation, which are backed by battery of lawyers to represent their case before the Court of law can not be equated with rustic villager to get some sort of relaxation for condoning the delay and/or recalling or restoration of the matter.  Ratio of the jurdgment to that extent reported in 2007 (9) ADJ 72 (DB) (Hanuman Industries India Pvt. Ltd. Vs. Official Liquidator U.P. And Another) is followed herein.   Therefore, when no explanation is there how the Advocates were prevented from appearing in the Court on that very date and time when the matter was called out or immediately thereafter, is a major question for condonation of delay and recalling or restoration of the order.  But we do not find any explanation in this regard.  The matter is very old one and such type of matters should not be kept pending unnecessarily to increase the number of litgations unless, of course, prudent cause is available.  In the instant case, respondents have vehemently opposed restoration application and condonation application by filing the counter affidavit. The important paragraphs of counter affidavit are quoted hereunder:
 
"4.	That the counter and rejoinder affidavit have been exchanged between parties long back.  The writ petition had been dismissed on   several occasion earlier from the record of the case it appears that it was dismissed in default on 5.9.2003 and was restored on 4.7.2005.  Thereafter it was dismissed in default on 17.7.2008 and restored on 10.7.2009.  Again writ petitioin was dismissed on 3.9.2009 and the order was recalled on oral request of the petitioner counsel lasttly the writ petition was dismissed on 22.10.2009, the recall application for this order of dismissal has been filed by the petitioner after about one and half year.
 

 
5.	That there has been some important development after dismissal of the writ petition the corporation has served notice dated 19.11.2010 under section 29 of the SFC Act by registered post on the petitioner calling upon them to pay the dues of the corporation.  The petitioner have not responded to the said notice.  In pursuance to the notice under section 29 the corporation had published advertisements inviting offer for purchase of the unit of the petitioner, in widely circulated news papers in the month of January and February 2011.  Photo copies of the notice under section 29 dated 19.11.2010 and the notice published in Amar Ujala Alld. dated 19.1.2011 and photo copy of the notice dated 26.2.2011 published in Amar Ujala are being filed herewith and marked as Annexure CA-1, CA-2 and CA-3 to this affidavit.
 

 
6.	That the petitioiner has already remove the plant and machinery from the factory site.  The sale of the land and building of the petitioiner unit has been finalized on 31.3.2011 to the offerer M/s Kavita Enterprises after completing the ncessary formalities.
 

 
7.	That the offer received by the corporation for sale of the unit of the petitioner was also duly advertised in the news papers for obtaining higher offer the petitioner were also given opportunity to purchase the unit or bring or purchaser of higher value.  The settlement committee of the corporation has approved the sale of the unit in favour of M/s Kavita Enterprises in its meeting dated 28.3.2011.  The possession of the unit has been taken over by the official of the corporation on 7.4.2011 and it was handed over to the purchaser Mr. Rohit Wadhavan proprietor of M/s Kavita Enterprises Darbhanga castle Allahabad.  Photo copy of the possession memo is being filed herewith and marked as Annexure C.A. 4 to this affidavit.
 

 
8.	That the sale deed dated 14.6.2011 has been executed by the corporation in favour of the purchaser M/s Kavita Enterprises through its proprietor Mr. Rohit Wadhavan."
 

 

 
	 Therefore, when no sufficient cause is available in connection with absence of so many Counsel of the petitioners and when third party interest has been created between the period when the writ petition was dismissed and as of now,  we are of the view that the writ petition has become infructuous in real sense, which can not be revived prejudicing the interest of a third party, who is not before us.  Therefore, neither delay in making application be condoned nor the earlier order can be recalled.  Thus, both the applicatioins are rejected, however, without imposing any cost.  In case any fresh cause of action arises for the petitioners, it is open for them to proceed in accordance with law, if so advised.
 

 
(Justice Amitava Lala)
 

 
	I agree.
 

 
(Justice Ashok Srivastava)
 

 
Dt/. 17.08.2011
 
MAA/-
 
Hon'ble Amitava Lala,J.

Hon'ble Ashok Srivastava,J.

The recall application is rejected, however, without imposing any cost.

Dt. 17.08.2011 MAA/-

For orders, see order of date passed on separate sheets (three pages).

Dt. 17.08.2011 MAA/-

Hon'ble Amitava Lala,J.

Hon'ble Ashok Srivastava,J.

The application for condonation of delay is rejected, however, without imposing any cost.

Dt. 17.08.2011 MAA/-

For orders, see order of date passed on the recall application no. 77688 of 2011.

Dt. 17.08.2011 MAA/-