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TMI Blog2010 (3) TMI 676X X X X Extracts X X X X X X X X Extracts X X X X ..... and R. Saravanakumar for the Respondent. JUDGMENT M. Chockalingam, J. - These appeals challenge a common order of the learned Single Judge of this Court made in C.A. Nos. 1628, 1625, 1626 and 1627 of 2006, respectively, in C.P. No. 387 of 2003 Blaiklock Compass World Transport (HK) Ltd. v. Official Liquidator [2010] 153 Comp. Cas. 480 . 2. The case of the petitioning creditor, the first respondent herein, is that respondent Nos. 3 to 8 herein who are the ex-directors of the company under liquidation, have fraudulently constituted a new company with name M/s. Scanwell Logistics (P.) Ltd., the appellant herein, on 28-5-2004, during the pendency of the company petition in the same premises of the company under liquidation; that out of the five directors of the appellant-company, respondent Nos. 3, 7 and 8 herein have transferred the property and business of the company under liquidation; that under the circumstances, they are liable under section 536 of the Companies Act, 1956; that the conduct of these respondents also amounts to misfeasance; that it becomes necessary that the corporate veil of the appellant-company has to be lifted to find out the fraud, and hen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... misfeasance proceedings against the ex-directors of the company; that while so, there can be no investigation against the appellant-company; that in any event, the ex-directors of the company in liquidation were not shareholders in the appellant-company; and that under the circumstances, the order of the learned Single Judge has got to be set aside. 6. In answer to the above, learned senior counsel Mr. T.K. Seshadri appearing for the first respondent, put forth his submissions in his sincere attempt of sustaining the order of the learned Single Judge. 7. The court heard learned counsel appearing for the other contesting respondents also. 8. Learned counsel for the fourth respondent brought to the notice of the court that the names of respondent Nos. 4 and 5 have already been deleted by an order of the court in C.A. No. 246 of 2008, dated 17-3-2008. 9. This court paid its anxious consideration on the submissions made. 10. As could be seen above, while disposing of all the applications in Blaiklock Compass World Transport (HK) Ltd. s case ( supra ), the company court has made the following order : "In such circumstances, I direct the Official Liquidator of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erties of the company under liquidation from the sixth respondent on 25-5-2006. He has also brought the movables by way of auction and sold some of the movables for a sum of Rs. 1,62,300 subject to the confirmation by the court. From the materials available, it could be seen that when the Official Liquidator came to know that the company under liquidation paid a sum of Rs. 3,50,000 towards the rental advance, he sent a communication to the landlord that the said rental advance was to be ascertained. He received a reply from the landlord that the said advance was actually transferred to the new company, namely, M/s. Scanwell Logistics (P.) Ltd., which is the second respondent therein and the appellant herein. The said transfer of advance was also pursuant to the letter dated 15-7-2004, according to the report of the Official Liquidator. 13. Before seeking the relief, the Official Liquidator has filed a report before the Court. From the perusal of the report, it is noticed that out of the directors, two directors, namely, Mr. S. Ramesh and V. Babu, put forth the statement of affairs though belatedly, and on verification, the Official Liquidator noticed the bank balance what was i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the winding up order came to be passed only on contest. Even in the counter affidavit, the ex-directors have not even whispered about the constitution of the appellant-company. 15. Apart from the above, though it was contended by the appellant that the object and business of the appellant-company were entirely different from that of the company under liquidation and that the appellant-company was constituted only with the object of service oriented cannot be accepted since no material was placed before the Court. However, there could not have been any impediment for the appellant in placing the memorandum of association of the appellant-company in order to appreciate its contention, but not done so. It is pertinent to note that the appellant-company has not even disclosed in its counter the object of the company. In view of all the above, the contention put forth by the appellant s side that subsequent to the termination of the agency of the company under liquidation, the principal company had started its own subsidiary in India in which for the purpose of constitution, three of the ex- directors of the company under liquidation were added as directors cannot be accepted. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cerned." 17. Under the above-stated circumstances, the view taken by the learned Single Judge ordering investigation by the Official Liquidator as to the affairs of the company, especially with reference to the object and transactions which have taken place from the date of its incorporation, namely, 28-5-2004, till the date of order and directing him to file a report does not require interference. 18. Lastly, learned counsel for the appellant made two contentions. Firstly, even if an investigation of the affairs of the appellant-company is to be made by the Official Liquidator, it could be ordered only till the date of order of winding up of the company, and secondly, when the same was to be done by the Official Liquidator, there was no necessity for giving opportunity to the petitioning creditor. 19. In answer to the above, it is contended by learned senior counsel for the first respondent that if an investigation has got to be made as to the affairs of the appellant-company in order to find out the truth, it is necessary that the investigation should be done for the subsequent period also. So far as the second contention that opportunity was not necessary to the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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