9911796707
TMI Blog1980 (2) TMI 210X X X X Extracts X X X X X X X X Extracts X X X X ..... and payable by the appellant-company and the amount of rent claimed in the said petition being C. P. No. 387 of 1976 was Rs. 1,92,000 with interest. The said winding-up petition was finally disposed of by an order passed by A.K. Basu J. on February 17, 1977. The learned judge, by his order, directed the said company, to deposit a sum of Rs. 1,00,000 in cash with M/s. Orr, Dignam Co., who acted as the advocates on record for Premchand Jute Mills Ltd. in the said winding-up petition and the learned judge further directed that in the event of the said deposits being made, the winding-up petition would remain stayed permanently and the company would file a suit for the enforcement of its claim. It appears that Premchand Jute Mills Ltd. received a sum of Rs. 1,30,000 from the insurance company in respect of a claim made on behalf of the appellant-company and the said sum of Rs. 1,30,000 was paid in terms of the earlier order dated February 17, 1977, as modified by an order dated 11th March, 1977. Premchand Jute Mills Ltd. filed a suit against the appellant-company for the enforcement of its claim on the 16th of April, 1977. It appears that the appellant-company thereafter on the 17t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stay of the operation of the order passed by the learned judge in the application of Premchand Jute Mills Ltd. was being heard before the appellate court, an order for the winding-up was passed by the company court on the application of another petitioning creditor, namely, Ashkaran Chatter Singh. In view of the order of winding-up passed by the learned trial judge it appears that the appellate court passed an order on the said application of the appellant, Sonajuli Tea Industries Ltd., in its appeal against the order of learned trial judge in Premchand's application by which order the learned company judge had only admitted the petition and directed advertisements giving liberty to Premchand Jute Mills Ltd. to participate in the winding-up proceedings in view of the winding-up order already passed. Against the order of winding-up passed by the learned judge on the petition of Ashkaran Chatter Singh on 13th August, 1979, the appellant-company preferred the instant appeal on the 11th of September, 1979, and the appellant-company in the instant appeal made an application for stay of operation of the order of winding-up passed by the learned trial judge. On the said application the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... including the pending proceedings be permanently stayed. ( d )Injunction restraining the official liquidator his servants or agents, or nominees or assigns from taking any further steps in furtherance of the winding-up." It appears that on November 19, 1979, on the said application which was moved on notice to the creditors the court directed the petitioner to deposit Rs. 50,000 in cash with the official liquidator and to furnish bank guarantee for Rs. 1 lakh on or before December 4, 1979, and the official liquidator was further directed to make over possession of the office to the company on deposit of Rs. 50,000. It appears that in terms of the said interim order passed by the court on the 19th November, 1979, the petitioner deposited a sum of Rs. 50,000 with the official liquidator and also furnished bank guarantee for the sum of Rs. 1 lakh. On the 29th of November, 1979, Premchand Jute Mills Ltd. made an application for vacating the interim order which was passed by the appellate court on the 19th November, 1979. The said application is also appearing today on the list immediately after this application. It appears that both the said applications, namely, the application b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ake an application for the stay of a winding-up proceeding. Mr. Chatterjee has argued that leave of court was granted to the petitioner to make this application. He has submitted that on the 13th November, 1979, the matter was really mentioned on behalf of the petitioner and on the oral application made on behalf of the petitioner the said directions were given and the court also gave liberty to the petitioner to make a formal application within a week, during which period the order passed on the oral application was to remain effective. It may be noted that this part of the submission is disputed on behalf of the respondents. Mr. Mukherjee, appearing on behalf of the Jute Mills Ltd., has drawn our attention to the notice which was served on his advocate-on-record for this mentioning and Mr. Mukherjee has stated that the said notice does not indicate that the matter was going to be mentioned on behalf of any contributory. On the other hand, the said notice was by Rajesh Khaitan Co. who in fact had been the advocate-on-record for the appellant-company. A copy of the notice is directed to be kept in the records of these proceedings. The minutes of the court were called for. The m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontributory to make an application for stay of winding-up proceeding is further recognised by the statute, grant leave to the petitioner and the petitioner should be allowed to make the present application in the present appeal. Mr. Chatterjee has further argued that if considered necessary the court should add the petitioner as a party to the proceeding. It is his submission that under order 1, rule 10 of the CPC the court has ample jurisdiction to add anybody as a party to any proceeding in the interests of justice. Mr. Chatterjee has next contended that this application is really in the nature of an application for extension of time to make the deposit in terms of the order passed by the appellate court on the 13th September, 1979, to make the said order for stay effective. Mr. Chatterjee has argued that the court while passing the order on the 13th September, 1979, must have felt that a case for stay had been made out and must have passed that order on that basis. Mr. Chatterjee submits that as the company had failed to make the deposit, the contributories of the company, to make the said order effective and to revive the company, have now come forward to make the said deposit. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng on behalf of Premchand Jute Mills Ltd., has mainly argued this application on behalf of the respondents. Mr. Mukherjee has raised the following three principal contentions I (1)The present petition by the contributory is not maintainable. (2)Even assuming it can be said that the present petition by the contributory with leave of court can be entertained, no grounds have been made out in the petition for granting such leave to the petitioner to present the present petition. (3)In any event, there is no merit on this application and the appli cation is mala fide . In support of his first contention that the present petition by the contributory is not maintainable. Mr. Mukherjee has argued that the present petition cannot be considered to be a petition under section 466 of the Companies Act. It is his argument that undoubtedly under section 460 of the Act, a right has been conferred on the contributory to make an application for a stay of the winding-up of the company after the company had been ordered to be wound up. Mr. Mukherjee argues that a proceeding under section 466 is an independent proceeding and the basic requirement of the said section is that the contributory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refer an appeal and in fact the appeal has already been filed by the company which is still pending and the petitioner is only seeking to make an application in an appeal in which the appellant is not a party. Mr. Mukherjee has commented that the general principles of law conferring right on a person who is not a party to any proceeding to prefer an appeal with leave of court against an order which might prejudicially affect his interest, cannot be extended to confer right on an outsider to make an application in an appeal already preferred by the party aggrieved when the. aggrieved party himself prefers an appeal against the order. Mr. Mukherjee has finally submitted that in any event leave is granted by the court on a proper consideration of the materials. It is his argument that in the instant case there are no materials on the basis of which leave, even proceeding on the basis that such leave could be granted, should be granted by the court and no grounds have at all been made out for the grant of such leave in the petition and there is no prayer for the same. Mr. Mukherjee has also pointed out that if the appellant wanted to prefer an appeal against the order against which the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r could not take any earlier step for implementation of the said order on the basis of which the order for stay was granted. Mr. Mukherjee has argued that the Agarwallas virtually constitute the company and the petitioner must have been aware of the proceedings right from the beginning including the order that was earlier passed by this court. Mr. Mukherjee has further submitted that the conduct of the petitioner and also of the company clearly go to indicate that the only object of the petitioner is to obtain stay of the operation of the order of winding-up to enable the petitioner to take advantage of the present condition in the jute market. Mr. Mukherjee in this connection has drawn our attention to the various notices issued by the company and also to the notice dated 6th of November, 1979, which go to indicate that the mills would be run by India Burlap Laminating Works and the said notice is also signed by one of the Agarwallas who mainly constitute the contributories of the company. Mr. Mukherjee has further submitted that the company is hopelessly insolvent and in support of this submission, Mr. Mukherjee has referred to the statement made by the liquidator which has b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ving notice in accordance with the Rules. The contributories have not chosen to appear at the hearing of the winding-up petition. The appeal had been preferred by the company against the order of the learned trial judge. The order that was passed on the 13th September, 1979, was only an interim order pending final disposal of the said application by the company for a stay of operation of the order of winding-up in the appeal preferred by the company against the said order. The said application came up for final disposal. The company had not complied with the conditions laid down in the said order. The order for stay stood vacated on the 19th September, 1979, and the court had also passed a specific order on that date to that effect and directed the liquidator to take possession. The application came up for final disposal on the 5th November, 1979. On that date nobody on behalf of the company even appeared in support of the said application. It appears that the company had obviously lost all interest in the proceeding after the interim order for stay stood vacated because of default on behalf of the company in complying with the conditions laid down in the interim order for ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve, no such leave in the instant case should be granted and we refuse to grant any such leave to the petitioner. We have, however, already expressed our view that in such a case leave cannot be granted to a party to present an application in an appeal preferred by somebody else for the relief, which the appellant himself was entitled to ask for, had in fact asked for and obtained and had thereafter failed to retain the benefit of the order because of his own default. We must, therefore, hold that the present petition is not competent and we cannot entertain the same. In view of our finding on this question, it does not really become necessary to go into the other questions. As, however, arguments have been advanced at length on the merits, we shall briefly indicate our views on the same. The facts and circumstances of this case, which we have earlier indicated, go to show that no order for stay of the winding-up should be made and that the present petition is a mala fide one. The facts and circumstances of this case further go to suggest that the appellant-company which has not been in a position to run the mills for all these years and is hot still in a position to run the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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