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TMI Blog2004 (2) TMI 345X X X X Extracts X X X X X X X X Extracts X X X X ..... esaid application. 3. It is, inter alia, stated in the said affidavit that the company, namely, M/s. Viniyoga Clothex Limited (in liquidation) was ordered to be wound up by the order dated 24-4-1998 on the recommendation of the Board for Industrial and Financial Reconstruction (BIFR); and that complaint was filed by the Official Liquidator for non-filing of the Statement of Affairs by the opposite party as provided under section 454 of the Companies Act, 1956; and that upon the said complaint, this Court took cognizance of the offence and issued summons to the opposite party for compliance and filing of the Statement of Affairs of the company; and that the said summons were returned as unserved; and that thereafter, this Court issued bailable warrant compelling appearance of the opposite party; and that as the opposite party did not turn up, non-bailable warrant was issued by this Court which was later returned as unserved with an endorsement "absconding" by the Chief Metropolitan Magistrate, New Delhi; and that in the circumstances, the aforesaid application has been filed seeking the directions mentioned above. I have heard Shri Arnab Banerji, learned counsel for the Offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been instituted, or is instituted, or such claim or question has arisen or arises or such application has been made or is made before or after the order for the winding up of the company, or before or after the commencement of the Companies (Amendment) Act, 1960.] (3) Any suit or proceeding by or against the company which is pending in any Court other than that in which the winding up of the company is proceeding may, notwithstanding anything contained in any other law for the time being in force, be transferred to and disposed of by that Court. [(4) Nothing in sub-section (1) or sub-section (3) shall apply to any proceeding pending in appeal before the Supreme Court or a High Court.]" Section 454 of the Companies Act, 1956 lays down as under : "454. Statement of affairs to be made to Official Liquidator. (1) Where the Court has made a winding up order or appointed the Official Liquidator as provisional liquidator, unless the Court in its discretion otherwise orders, there shall be made out and submitted to the Official Liquidator a statement as to the affairs of the company in the prescribed form, verified by an affidavit, and containing the following particulars, namel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay consider reasonable, subject to an appeal to the Court. (5) If any person,without reasonable excuse, makes default in complying with any of the requirements of this section, he shall be punishable with imprisonment for a term which may extend to two years, or with fine which may extend to [one thousand] rupees for every day during which the default continues, or with both. (5A) The Court by which the winding up order is made or the provisional liquidator is appointed, may take cognizance of an offence under sub-section (5) upon receiving a complaint of facts constituting such an offence and trying the offence itself in accordance with the procedure laid down in the Code of Criminal Procedure, 1898 (5 of 1898), for the trial of summons cases by Magistrates. (6) Any person stating himself in writing to be a creditor or contributory of the company shall be entitled, by himself or by his agent, at all reasonable times, on payment of the prescribed fee, to inspect the statement submitted in pursuance of this section, and to a copy thereof or extract therefrom. (7) Any person untruthfully so stating himself to be creditor or contributory shall be guilty of an offence under sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to a summons and warrant, and their issue, service and execution, shall, so far as may be, apply to every summons and every warrant of arrest issued under this Code." Hence, the provisions contained in Chapter VI of the Code of Criminal Procedure, 1973 relating to summons and warrants, and their issue, service and execution, shall, so far as may be, apply to every summons and every warrant of arrest issued under the Code of Criminal Procedure, 1973. 13. Part A of Chapter VI of the Code of Criminal Procedure, 1973, consisting of sections 61 to 69, deals with the summons, while Part B of Chapter VI of the Code of Criminal Procedure, 1973, consisting of sections 70 to 81, deals with warrant of arrest. 14. Section 76 of the Code of Criminal Procedure, 1973, inter alia, provides that the Police Officer or other person executing a warrant of arrest shall without unnecessary delay bring the person arrested before the Court before which he is required by law to produce such person. Proviso to section 76 of the Code of Criminal Procedure, 1973 provides that the delay in producing the person arrested before the Court shall not, in any case, exceed 24 hours exclusive of the time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the proclamation was duly published on a specified day, in the manner specified in clause ( i ) of sub-section (2), shall be conclusive evidence that the requirements of this section have been complied with, and that the proclamation was published on such day. 83. Attachment of property of person absconding. (1) The Court issuing a proclamation under section 82 may, for reasons to be recorded in writing, at any time after the issue of the proclamation, order the attachment of any property, movable or immovable or both, belonging to the proclaimed person: Provided that where at the time of the issue of the proclamation the Court is satisfied, by affidavit or otherwise, that the person in relation to whom the proclamation is to be issued,- ( a )is about to dispose of the whole or any part of his property, or ( b )is about to remove the whole or any part of his property from the local jurisdiction of the Court, it may order the attachment simultaneously with the issue of the proclamation. (2) Such order shall authorize the attachment of any property belonging to such person within the district in which it is made; and it shall authorize the attachment of any prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Code of Criminal Procedure, 1973 including the powers given in Chapter VI of the Code of Criminal Procedure, 1973, consisting of sections 61 to 90, regarding processes to compel appearance of a person before the Court. 21. Hence, the Court by which the winding-up order is made, has jurisdiction to exercise powers given under sections 82 and 83 of the Code of Criminal Procedure, 1973 in case the circumstances of the case so require. This view gets support from the decisions in Khosla Fans (India) (P.) Ltd. (in liquidation) s case ( supra ) and B.L. Sharma Om Prakash Malhotra s case ( supra ) relied upon by the learned counsel for the Official Liquidator. 22. In Khosla Fans (India) (P.) Ltd. s case ( supra ), it was laid down by the Punjab and Haryana High Court as follows : ". . .The scheme of the Act would suggest that the provisions of sub-section (2) of section 446 of the Act have been enacted to clothe the High Court with wide jurisdiction to entertain and dispose of any suit or proceeding by or against the company when a winding-up order has been passed. It is, therefore, not correct to contend that this provision would not clothe this court with the jurisd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Court) Rules, 1959, wherein it has been provided that nothing in the Rules shall be deemed to limit or otherwise effect the inherent powers of the court to give such directions or pass such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court. This rule also saves the inherent power of the court to pass appropriate orders which may be necessary for the ends of justice or to prevent the abuse of the process of the Court. We are, therefore, inclined to hold that the High Court can exercise jurisdiction in suits and proceedings, including criminal proceedings in appropriate cases, by or against the company . The question of law referred to this Bench is answered accordingly and the case may now be listed before a learned Single Judge for appropriate orders." (p. 865) [Emphasis supplied] 25. In B.L. Sharma s case ( supra ), the Delhi High Court held as follows : "The scheme of the Companies Act is that when a winding-up order has been passed, a statement of affairs has to be given to the Official Liquidator and failure to make such a statement by the persons mentioned in section 454 is a penal offence created by section 454(5) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss at present and the non-bailable warrant was returned as unexecuted. Having perused the said report dated 15-5-2003, there is reason to believe that the said Vinay Bagla has absconded or is concealing himself so that warrant cannot be executed. In the circumstances, Official Liquidator is directed to take necessary steps in accordance with the provisions of sections 82 to 85 of the Code of Criminal Procedure, 1973 in respect of the said Vinay Bagla. In the circumstances, the case is directed to be listed on 26th August, 2003." 33. It is thus, evident that this Court has already recorded its satisfaction that there is reason to believe that the said Vinay Bagla (opposite party) has absconded or is concealing himself so that warrant cannot be executed, and in the circumstances this Court has directed the Official Liquidator to take necessary steps in accordance with the provisions of sections 82 to 85 of the Code of Criminal Procedure, 1973 in respect of the said Vinay Bagla (opposite party). 34. Thereafter, the Official Liquidator has filed the aforesaid Civil Misc. Company Application No. 201662 of 2003 under consideration. 35. Having considered the facts and circ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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