9911796707
TMI Blog1997 (4) TMI 389X X X X Extracts X X X X X X X X Extracts X X X X ..... ies described in exhibit A annexed to the notice of motion and movable properties and current assets described in exhibits B and C to the notice of motion. On 14-12-1994, this Court passed ad interim order directing that the defendant No. 1, namely, Moradabad Syntex Ltd., shall not dispose of suit immovable properties. The order dated 14-12-1994 was challenged in appeal, and on 13-3-1995 the order dated 14-12-1994 was modified by the Division Bench on the basis of the minutes of the order tendered by the counsel and the Court receiver was continued to be appointed ad interim receiver in terms of immovable properties described in exhibit-A annexed to the notice of motion and the current assets described in exhibit-C except movable properties described in exhibit-B. 3. On 23-1-1996, the notice of motion was adjourned sine die and it was ordered by this Court that the ad interim order of injunction granted on 14-12-1994 shall continue to operate during the pendency of the suit. The grievance of the applicants/plaintiffs is that the efforts of the Court receiver in executing the order dated 13-3-1995 could not materialise because of the defendants. The applicants state that the Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 13-3-1995 cannot be executed; (3)that the ad interim order dated 14-12-1994 passed in notice of motion was challenged in appeal on which the order dated 13-3-1995 came to be passed and thereafter notice of motion is no longer pending and the only order operating is the order passed on 13-3-1995; and (4)that the winding up order having been passed by BIFR on 26-6-1996 and on the basis of the said order, the concerned High Court is bound to pass the order of winding up and/therefore, under section 446 of the Companies Act, the proceedings deserve to be stayed. The learned counsel appearing for defendant Nos. 1, 3 and 4 during the course of arguments reiterated the aforesaid objections to the chamber summons and in support of his contentions relied upon the decision of this Court in C.J. Gelatine Products Ltd. v. Karam Chand Thaper & Bros. Ltd. [1992] Mah LJ 800. Adverting to the contention Nos. 3 and 4 first, it may straight away be observed that the said contentions raised by the learned counsel for defendant Nos. 1, 3 and 4 are devoid of any substance and have no merit. Section 446 has no application in the present case. Section 446 reads thus: "Suits stayed on winding u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conditionally or unconditionally or make any interim order it may think fit or may make an order for winding up of the company with or without costs or any other order that it thinks fit. Upon passing of the winding up order by Court hearing the winding up petition, the consequences provid- ed in section 446 stand attracted. Any recommendation of winding up made by the BIFR under the SICA is not covered under the expression 'winding up order has been made'. In my view, therefore, the last conten-tion raised by the learned counsel for the defendant Nos. 1, 3 and 4 invoking section 446 is negatived having no substance. Similarly, the third contention raised by the learned counsel for the defendant Nos. 1, 3 and 4 that the order dated 14-12-1994 passed by way of an ad interim measure modified in appeal by the Division Bench by order dated 13-3-1995 are not in existence in view of the disposal of the notice of motion is misconceived, the notice of motion No. 2896 of 1994 in which the Court receiver has been appointed has not been disposed of so far. By the order dated 23-1-1996 the notice of motion has been adjourned sine die since by that time the defendant No. 1 company's inquiry und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same. The provisions of the said SICA have overriding effect over the provisions of the said Act. The inquiry commenced against the company is still pending and the scheme is under preparation. Since filing of the petition itself is void, the pendency of application of the petitioners with BIFR for its consent at this stage is of no relevance or significance. Similarly, lack of knowledge on the part of the petitioners about the company being declared as a sick unit at the time of filing of the petition as also the company filing the affidavit to oppose admission of the petition after lapse of some time are also of no relevance or significance. When, in the circumstances of the case, the petition could in law be not entertained the question of the company being estopped from challenging the maintainability of the petition on the ground of institution thereof itself being void ab initio does not arise.' 9. It is true that the chamber summons was taken out by the plaintiff on 31-10-1996 for the relief aforestated and at that time the matter was pending before the AAIFR in appeal under section 25 of the SICA relating to defendant No. 1. However, there is no dispute that on 25-1-19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... up by Court - (1) Where, before the presentation of a petition for the winding up of a company by the Court, a resolution has been passed by the company for voluntary winding up, the winding up of the company shall be deemed to have commenced at the time of the passing of the resolution, and unless the Court, on proof of fraud or mistake, thinks fit to direct otherwise, all proceedings taken in the voluntary winding up shall be deemed to have been validly taken. (2) In any other case, the winding up of a company by the Court shall be deeded to commence at the time of the presentation of the petition for the winding up." 12. The petition for winding up has been presently pending before the Delhi High Court. Though the learned counsel for the defendant Nos. 1, 3 and 4 was not in a position to specify the date on which the winding up petition was presented, according to him, the winding up petition was placed before the company Judge of the Delhi High Court hearing winding up petitions on 22-2-1997 after it was numbered. The said facts are not disputed by the learned counsel for the plaintiffs. This section read with section 441(2) fixes the date of the commencement of the winding u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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