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TMI Blog2009 (12) TMI 515X X X X Extracts X X X X X X X X Extracts X X X X ..... n directed the Official Liquidator to return possession already taken pursuant to the earlier order and fixed a date for further hearing. The procedure adopted by the 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. We consequently allow the appeal, set aside the impugned order and reject the application filed by the company-in-liquidation on which the impugned order 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 adju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid rent and non-furnishing of Tax deducted at Source Certificate by the company. The company was a tenant in respect of approximately 3,000 sq. ft. at premise No. 17/1F, Alipore Road, Kolkata paying a monthly rental of Rs. 99,000 approximately. The said company, according to the appellant, defaulted in making payment of rent since April, 2006, as a result, the application was filed. 3. The defaulter company appeared in the winding up proceedings and filed an affidavit-in-opposition and supplementary affidavit and by order dated 12-12-2008, the said winding up petition was admitted for the sum of Rs. 4,85,030 and the company was directed to pay the said amount together with 5 per cent interest in 10 instalments from the month of December, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ating the order dated 17-2-2009 and immediately upon coming to know about the same, the appellant went to the company court and opposed the said application. On the appellant's intervention, the learned Single Judge directed to respondent to serve a copy of the application upon the appellant and the matter was directed to appear on 24-4-2009. 10. Pursuant to the direction of the learned Single Judge, the respondent affirmed an affidavit although no Judges' Summons was served upon the appellant. It would appear from the said affidavit that the application was totally silent on the fact that the cheque dated 6-1-2009 issued by the company for payment of such second instalment was dishonoured on presentation. In paragraph 5 of the said affida ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of that amount. 13. On hearing of such submission, the learned Trial Judge passed the order impugned. 14. The only question that arises for determination in this appeal is whether there was justification of passing direction for handing over possession of the property to the company-in-liquidation which had already been taken by the Official Liquidator pursuant to the earlier order of the Company Court consequent to the default already committed by the company-in-liquidation. 15. After hearing the learned counsel for the parties and considering the provisions contained in section 466 of the Companies Act, 1956, we are unable to approve the order passed by the learned Single Judge. As pointed out by this Court in the case of Mahabir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the statements of affairs. (11)Any other relevant facts which the Court thinks fit to be considered for granting or refusing stay having regard to the peculiar facts of a particular case. 16. In the case before us, there is no dispute that the second instalment pursuant to the initial order passed by the company Court was not paid and consequently, the Official Liquidator had taken possession of the property of the company. It appears from the application filed for stay supported by affidavit that the application was totally silent on the fact that the cheque dated 6-1-2009 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 7-1-2009, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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