9911796707
TMI Blog2010 (2) TMI 576X X X X Extracts X X X X X X X X Extracts X X X X ..... n to the object of the provision to pass the order to wind up the affairs of the company which is mainly to protect the public interest and not necessarily from the angle of the company surviving or not. When such aspects are involved in passing an order of wind up in respect of the company with the initial stage as in the impugned order not bestowing such attention, in our opinion, clearly vitiates the law and inevitably we have to set aside the impugned order and it is necessary that the appellant-company is given a proper opportunity to put forth its version before the petition presented under section 433(e) of the Act is examined by the company judge and appropriate orders are passed thereafter and for such purpose the matter is rema ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es that were available to the respondent-company ; that the act of admitting the company petition and permitting the company to take out advertisement to advertise that the company petition has been admitted and inviting response or reactions from interested persons is a very serious matter; that it can affect the affairs of the company in a very adverse manner; that it can financially act to the great detriment of a company which is active and functioning and could result in disaster to the company on financial side and a matter of serious repercussions even on the investors in the company if the company is a listed company and that the share value in the stock market taking the nose-dive, all investors can be ruined and a potential order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. Hand delivery of this order is permitted. 6. List on November 11, 2009, for further orders. Registry may indicate that to be the date of hearing." 5. When the matter came up for further orders on November 11, 2009, the outcome of the proceedings in Company Petition No. 74 of 2009 was stayed in terms of the order passed on Misc. Cvl. No. 20137 of 2009 which reads as under : "Though notice had been issued to the respondent and respondent is represented by counsel, none appears for the respondent. 2. In the circumstances, the appeal is admitted. The interim order granted earlier is continued until further orders. 3. List the matter only if the matter is moved by any of the parties. 4. Issue interim stay of further proceedin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... number of authorities of not only this court but also of the Supreme Court. 9. In a matter of such grave consequences if a company like the present appellant which is a giant public sector undertaking should be ordered to be wound up and initial step for such eventuality of passing an order to wind up the company being to admit the company petition and to order for paper publication is undoubtedly a matter of great public concern and also of considerable concern for the very company itself. 10. In such matters, the mere possibility of the fiction being employed to deem that the company being unable to pay its debts cannot by itself ipso facto lead to the inference that the company can be ordered to be wound up. Section 433 of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k at the statutory provision of section 433 of the Act indicates that it is in the discretion of the company court to pass an order to wind up or otherwise in the circumstances mentioned in several clauses of section 433 of the Act. 12. While the circumstances stipulated in clauses ( a ) to ( i ) of section 433 of the Act should necessarily be fulfilled even for the court, to examine as to whether it is a situation warranting an order to wind up the affairs of the company or otherwise, even if such circumstances are not complied with, there is no question of the court proceeding to pass such an order. Even if the circumstances stipulated in any one of the clauses of section 433 of the Act still it is in the discretion of the court to p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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