1988 (6) TMI 300 - HC - Companies Law

Summary

Issues Involved:
1. Recall of the Winding Up Order
2. Jurisdiction and Inherent Powers of the Company Court
3. Considerations for Recall or Stay of Winding Up Order

Summary:

1. Recall of the Winding Up Order:
The petitioners, directors of Super Galaxy Drugs Pvt. Ltd. (in liquidation), filed an application u/s 151 CPC and section 466 of the Companies Act, 1956, seeking to recall or permanently stay the winding up order dated February 6, 1987. The reason for this application was that the petitioners had settled the dues with the respondent-company and claimed that the company had the potential to run profitably, supported by exhibits R-1 to R-4. The application was not opposed by the respondent-company or the two creditors, but the official liquidator objected to the recall of the winding up order.

2. Jurisdiction and Inherent Powers of the Company Court:
The court examined its jurisdiction to recall the winding up order based on rules 6 and 9 of the Companies (Court) Rules, 1959, and relevant Supreme Court decisions. The court referred to previous cases, including the Delhi High Court's decision in Anil Kumar Sachdeva v. Four "A" Asbestos P. Ltd. and the Supreme Court's observations in Sudarsan Chits (I) Ltd. v. G. Sukumaran Pillai, which affirmed the inherent power of the court to revoke or recall a winding up order.

3. Considerations for Recall or Stay of Winding Up Order:
The court considered the arguments of Mr. Udaya Holla for the petitioners and Mr. S. Vijayashankar for the official liquidator. It was argued that the court's inherent powers u/s 151 CPC and rules 6 and 9 of the Companies (Court) Rules, 1959, allowed it to recall the winding up order. The court also noted that the Act's provisions did not limit this inherent power. The court distinguished the case from those where the winding up order was made by mistake or where an appeal was the appropriate remedy. The court emphasized that the recall of the winding up order was just and necessary as the respondent-company and creditors did not oppose it, and the petitioners had settled the claims.

Conclusion:
The court concluded that it had the inherent power to recall the winding up order under rules 6 and 9 of the Companies (Court) Rules, 1959. The application was allowed, and the order of winding up was recalled. The petitioners were directed to file a certified copy of the recall order with the Registrar of Companies, and the company petition was posted for further orders.