9911796707
TMI Blog2009 (12) TMI 513X X X X Extracts X X X X X X X X Extracts X X X X ..... the official liquidator had taken possession of the property of the company. It appears from the application filed for stay supported by an affidavit that the application was totally silent on the fact that the cheque dated January 6, 2009, issued by the company for payment of such second instalment was dishonoured on presentation. In paragraph 5 of the said affidavit, it was alleged that on January 7, 2009, the company tendered a draft to the petitioning creditor. It would, however, appear from the annexure of the said affidavit that the alleged draft was posted on January 10, 2009. Thus, the order impugned was obtained with mala fide motive after suppression of material facts of dishonour of the cheque dated January 6, 2009. The mere fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er recorded that the company in liquidation was ready to hand over a pay order amounting to Rs. 2,11,500 and as the petitioning creditor was not in a position to accept the same on that day, the question would be considered on the next adjourned date. 2. Being dissatisfied, the petitioning creditor has come up with the present appeal. 3. The following facts are not in dispute : 4. The appellant before us instituted C. P. No. 242 of 2008 thereby praying for an order of winding up of the company in liquidation, namely, Rose Berry Agencies P. Ltd. According to the appellant, the claim arose out of unpaid rent and non-furnishing of tax deducted at source certificate by the company. The company was a tenant in respect of approximately 3,000 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d single judge from time to time and on March 17, 2009, his Lordship was pleased to direct the official liquidator to take possession of the assets of the company. 9. Pursuant to such direction, the official liquidator convened a meeting of the creditors on April 22, 2009, where a decision was taken to take over the registered office of the company on the selfsame date. 10. On April 22, 2009 at about 4 p.m., the official liquidator went to the office of the company and took over possession of the same after putting a padlock. 11. On April 23, 2009, the appellant came to know that the respondent was trying to move an application without notice to the appellant for vacating the order dated February 17, 2009 and immediately upon coming to k ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... listed matters would be called. 14. According to the appellant, suddenly after item No. 2 was called, item No. 99 was called on and the learned single judge started proceeding with the matter ex parte. The learned advocate for the appellant requested the learned judge to allow him to inform learned counsel but such prayer was refused and the learned court enquired from the learned advocate-on-record as to whether the appellant was ready and willing to take a sum of Rs. 2,00,000 and settle the dispute. The learned advocate-on-record, however, informed the learned judge that as on date, a total sum of Rs. 33,00,000 was due and payable by the company and such matter could be settled only on payment of that amount. 15. On hearing of such sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of irregularity demanding investigation. (7)A firm and acceptable proposal for satisfying all the creditors must be before the court with material particulars. (8)The jurisdiction for stay can only be used to allow in proper circumstances a resumption of the business of the company. (9)The court is to consider whether the proposal of revival of the company is not only for the benefit of the creditors but also whether the stay will be conducive or detrimental to the commercial morality and to the interest of the public at large. (10)Before making any order the court must see whether the former directors have complied with their statutory duties as to giving information to the official liquidator by furnishing the statements of affairs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned single judge was totally irregular as mentioned above and was opposed to the well-settled principles which are required to be followed before exercising the discretion of stay. 19. We consequently allow the appeal, set aside the order impugned and reject the application filed by the company in liquidation on which the order impugned has been passed as the averments made therein do not make out a case for recalling the earlier order. The payment made by the respondent pursuant to an order passed by a Division Bench of this court in connection with this appeal should be adjusted towards the claim of the appellants. 20. In the facts and circumstances, there will be, however, no order as to costs. 21. Prasenjit Mandal, J. --I agree. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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