9911796707
TMI Blog1978 (11) TMI 125X X X X Extracts X X X X X X X X Extracts X X X X ..... s have been filed, purportedly on behalf of the company, but signed by Shri R.P. Khanna, one of the directors of the company. C.A. No. 644/77 has been filed under section 466 (wrongly mentioned as under section 446) of the Companies Act while C.A. No. 645/77 has been filed under section 151 of the Code of Civil Procedure read with rule 9 of the Companies (Court) Rules. By the former application the applicant seeks stay of the winding-up proceedings before the official liquidator till the disposal of the latter application which is for setting aside the winding-up order passed by this court. The applications are opposed on several grounds but at the present moment I am concerned only with the preliminary objection which has been raised o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me relief is now being sought for by the same persons in the name of the company and that this should not be permitted. On the other hand, Shri Bikramjit Nayyar, appearing on behalf of the applicants, relied upon the judgments of Kapur J. in the case of Globe Motors ( Workshop ) Ltd. v. Sanghi Motors (C.A. No. 297/74 in C.P. No. 35/71) and in K.C. Sethi v. Bir Bahadur Singh and Co. Private Ltd. (C.A. No. 18/74 in C.P. No. 10/73) by which ex parte winding-up orders had been set aside by this court. He also submits that even after the liquidation of the company there are certain residuary rights in the former directors of the company which enable them to represent to the court the grievances of the company and that this applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is of the facts arid circumstances in which those orders were set aside but while these facts and circumstances would be relevant to consider the question of setting aside the ex parte order on the merits they would have no relevance so far as the issue of maintainability of the petition is concerned. Shri Mahinder Narain also referred to the decisions of S.R. Das J. (as he then was) in In the matter of East India Cotton Mills Ltd. [1949] 19 Comp. Cas. 61 , 87; AIR 1949 Cal. 69. At page 82 (of AIR) the learned judge observed, after distinguishing the cases cited for the petitioner to have the ex parte order set aside, as follows: "I have not been referred to any case where a person who is not a party to a proceeding has been permit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liquidator or the official liquidator who can represent the company and the directors thereafter have no power or authority to represent the company. Therefore, the present petitioners, he argued, are practically in the position of strangers. I am unable to accept this contention. It is true that after the winding-up order is passed the powers of the directors cease but there are still certain residuary powers in the directors. For example, the former directors of the company would certainly be entitled to prefer an appeal against the order of winding up. If that be so, I am unable to see why the same authority will not be available to the directors to seek an ex parte order for winding up being set aside. The decision in In Re Union Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a stranger. I may also refer to a decision reported in XLV Law Times (NS) 676 in the case of The Aston Hull Coal and Brick Company Ltd. In this case the company had been ordered to be wound up ex parte and Kay J., though with some reluctance, followed the order of Chitty J. in an earlier case and set aside the ex parte order. This case indicates that the notion of setting aside a winding-up order is not in any way unusual or impractical. For the above reasons I am in entire agreement with Kapur J. and hold that C. A. No. 645/77 seeking to set aside the winding-up order is maintainable. In view of these conclusions both this application as well as C. A. No. 644/77 will be posted for hearing on merits on December 13, 1978. - - Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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