2017 (10) TMI 906 - HC - Indian Laws

Stay of the winding up proceedings - petitioners are relatives of the ex-directors of the respondent company and have filed this petition on the allegations that the company owe an amount of ₹ 22.63 Lac to them which the company could not pay - Held that - The grievance of the applicant herein is duly taken care of (a) by filing of criminal complaint No.40/1/2016 against the ex-directors of respondent company; (b) by filing various complaints under Section 138 of the NI Act; and (c) by obtaining an award dated 31.05.2010 in its favour. Further, admittedly on 06.09.2010 when the provisional liquidator was appointed as also on 02.03.2012 when the respondent company was directed to be finally wound up, the applicant s counsel was very much present in the Court. The filing of this application after five years of passing of such orders despite having knowledge of the same would be nothing but an act of frustration, hence, the application being highly belated is dismissed. The applicant, even otherwise, is not devoid of remedy and may file claim before the Official Liquidator and once the claim is filed, the Official Liquidator to examine and verify the claim of the applicant herein and to deal with as per law.

Issues:
1. Stay of winding up proceedings filed by a creditor alleging collusion.
2. Allegations of non-payment of debt and filing of company petition.
3. Clearing services provided by the creditor to the respondent company.
4. Dishonored cheques and collateral provided by ex-directors.
5. Arbitral tribunal award in favor of the creditor.
6. Allegations of false ledgers and balance sheets by the respondent company.
7. Criminal complaint cases and legal proceedings against the respondent company.
8. Delay in filing the application for stay of winding up proceedings.

Analysis:

1. The petitioner, a creditor of the respondent company, sought a stay on the winding up proceedings, claiming collusion in obtaining the winding up orders. Allegations were made regarding the petitioner's relationship with the ex-directors of the respondent company, non-payment of debts, and the filing of the company petition.

2. The petitioner provided clearing services to the respondent company for derivative segments of the National Stock Exchange of India Limited. A significant amount was due to the petitioner, and despite promises from the respondent company, the debt remained unpaid, leading to the filing of the company petition.

3. The respondent company issued cheques to the petitioner, some of which were dishonored, and collateral was provided by the ex-directors. The respondent company suffered losses due to market conditions, leading to financial difficulties.

4. An arbitral tribunal awarded a substantial amount in favor of the petitioner against the respondent company. Criminal complaint cases were filed for dishonored cheques, and allegations of false ledgers and balance sheets were made against the respondent company.

5. The Metropolitan Magistrate noted discrepancies in the accounts of the respondent company but did not find grounds for forgery. Various legal actions were taken against the ex-directors of the respondent company, including criminal complaints and obtaining awards in favor of the petitioner.

6. The court dismissed the application for stay of winding up proceedings as belated, emphasizing that the petitioner had other legal remedies available, including filing claims before the Official Liquidator for verification and processing as per the law.

7. The judgment addressed the issues of collusion, non-payment of debts, legal actions taken against the respondent company, and the delay in seeking a stay on the winding up proceedings, providing a comprehensive analysis of the case.

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