9911796707
TMI Blog2000 (2) TMI 715X X X X Extracts X X X X X X X X Extracts X X X X ..... rayer above ; ( c )Costs of and incidental to this application be borne by the respondent-company as also the petitioning creditor ; ( d )Costs of an incidental to this application be borne by the respondent-company as also the petitioning creditor ; ( e )Such further or other order or orders be passed and/or direction or directions be given as to which this hon ble court may deem fit and proper." 2. The judge s summons was taken out by one Saroj Kumar Banerjee with a supporting affidavit dated 19-12-1998. 3. The applicants herein are different companies, when, such Saroj Kumar Banerjee filed his affidavit of competency by describing himself as partner of N.C. Banerjee and Sons working for gain, inter alia, at 34A, B.K. Pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leased to direct the official liquidator to stay his hands until further orders that such order was directed to be incorporated in the order dated 2-3-1998, which was passed on the earlier occasion. 8. According to the applicant/applicants above, the said order dated 11-3-1998, was obtained by the alleged debtor-company in collusion and conspiracy with the original petitioning creditor. No notice of obtaining such order from the court was given to any of the applicants. 9. The alleged debtor-company is commercially insolvent and is unable to pay its debt to the creditor or creditors and if the company is permitted to continue its business it will create further liabilities to the extreme prejudice and detriment of its present and fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion is barred by law of limitation or suffers from delay. Further since the order passed on 2-3-1998, stood merged with the order dated 11-3-1998, as a consequence whereof, the winding up order remained stayed. In the circumstances, there could have been no occasion for granting any relief to support the winding up order on 30-3-1998, when, in fact, there was no subsisting order of winding up on that date. Since the winding up order was stayed as on 11-3-1998, the question of giving any notice to the supporting creditors did not arise. Inasmuch as the company wanted to pay off the dues of the petitioning creditors, the matter was mentioned before this court and terms of settlement have been filed in the winding up petition which has been p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order serially to understand the situation : "March 2, 1998. The court : none appears for the company. The company is directed to be wound up in accordance with the provisions of the Companies Act. The official liquidator is directed to take possession of the assets of the company as expeditiously as possible. All parties are to act on a signed copy of the minutes of this order on the usual undertaking. March 11, 1998. The court : The official liquidator is directed to stay his hands until further orders. This is to incorporate in the order dated March 2, 1998. The official liquidator and all parties are to act on a signed copy of the minutes of this order." 14. According to me, there is no stay of winding up of the comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aud, but transpires as fraudulent or misrepresentation or misleading action before the court of law which is sufficient material for the purpose of passing an appropriate order in this application. Therefore, when the element of fraud is present, the application cannot suffer for lapse of time or delay as pointed out by the respondent hereunder. Such type of action rightly can be made when element of such action is available to the party or parties. 17. Under such circumstances, I allow this application by modifying the order passed on 13-5-1998, by incorporating the sentence, the winding up petition is permanently stayed as far as the original petitioning creditor, i.e., Sree Krishna Trading Company is concerned but not against each ..... X X X X Extracts X X X X X X X X Extracts X X X X
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