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TMI Blog2012 (6) TMI 199X X X X Extracts X X X X X X X X Extracts X X X X ..... or winding up – Held that:- power to file suits and/or proceedings for the recovery of the amounts due or becoming due cannot be held to embrace the power to institute proceedings for winding up under the Companies Act, 1956. Proceedings for winding up under section 433 of the Companies Act can by no stretch of imagination be equated to suits or for that matter suits for recovery of money. constituted attorney, B. Gopala Krishna is authorised to sign and verify plaints, written statements, petitions, vakalats, claims and objections and memorandum of all kinds and to present them in any court in India and offices and to file appeals, revisions and/or reviews for and on behalf of the company before any court in India and to appoint advocates and sign vakalats and to accept service on behalf of the company in connection with such proceedings. Since B. Gopala Krishna, who verified the contents of the petition has no authority to initiate winding up proceedings against the respondent-company, the company petition dismissed. - COMPANY PETITION NO. 160 OF 2009 - - - Dated:- 18-7-2011 - B. SESHASAYANA REDDY, J. B. Nalin Kumar for the Petitioner . CH. Ramesh Babu for the Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made by Ficom Organics Ltd., and the petitioner-company, the respondent-company issued a cheque bearing No. 48662 dated November 30, 2007, for Rs. 5,00,000 and cheque bearing No. 60882 dated January 21, 2008, for Rs. 4,59,640 drawn on Union Bank of India, Vijayawada towards discharge of the above referred debt. On presentation, both the cheques came to be dishonoured due to insufficient funds. Thereafter, the petitioner-company issued a statutory notice as provided under section 138 of the Negotiable Instruments Act, 1881 and filed C. C. No. 229 of 2009 and C.C. No. 323 of 2009 on the file of XI Additional Chief Metropolitan Magistrate, Secunderabad against the respondent-company and the managing director for the offence under section 138 of the Negotiable Instruments Act, 1881. The complaints filed under the Negotiable Instruments Act, 1881, are pending disposal. The managing director of the respondent-company made an endorsement on March 30, 2009, confirming the balance outstanding to the petitioner-company. The petitioner-company issued a notice dated May 11, 2009, by registered post acknowledgement due and also through fax bearing No. 08662545437 dated May 11, 2009, calling upo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the Act to invoke the jurisdiction of the courts situate at Andhra Pradesh based on the provisions of the Act for the purpose of winding up of the respondent-company. The petition presented by B. Gopala Krishna cannot be maintained since he has not obtained any leave as provided under rule 32 of the Civil Rules of Practice. Even the general power of attorney does not indicate of authorising him to institute company petition against the respondent-company for its winding up. The respondent-company is carrying on business since one and half decade and its paid-up capital is Rs. 25,91,84,060 and its turn over is Rs. 35,18,77,770. It provided employment to hundreds of persons either direct or indirect. The equity shares of the respondent-company are listed in Bombay Stock Exchange (BSE). The respondent-company acquired 60 per cent, of equity in M/s. Jetro Petro Biotech P. Ltd., and as such it became the subsidiary of the respondent-company. The petitioner-company has effective alternative remedy for recovery of the amounts due from the respondent-company by approaching the civil court. The statement of facts and figures projected by the respondent-company in its 14th annual report fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s month without fail. In view of the above we request you to kindly permit us time till end of this month to clear the dues. We request you to kindly bear with us for this delay and oblige. Thanking you, Yours faithfully, For Chemcel Biotech Ltd., K. T. Vijaya Kumar, Managing Director." 9. The said reply seems to be in response to the statutory notice issued to the respondent-company under section 434 of the 1956 Act. He would also contend that the registered office of the respondent-company is at Vijayawada, which is within the jurisdiction of this company court and therefore, this petition seeking for winding up of the respondent-company is maintainable in this court. 10. In support of his submissions, reliance has been placed, on the judgment of the Supreme Court in Madhusudan Gordhandas Co . v. Madhu Woollen Industries (P.) Ltd. [1972] 42 Comp. Cas. 125, wherein the Supreme Court held that where the debt is undisputed the court will not act upon a defence that the company has the ability to pay the debt but the company chooses not to pay that particular debt. Much emphasis has been laid by learned counsel on the following observation of the Supreme Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against the respondent-company under the provisions of the Act. Learned counsel laid much emphasis on clauses (3), (11) and (12) of the general power of attorney issued in favour of B. Gopala Krishna, senior accounts officer of the petitioner-company. By referring these clauses, he would contend that B. Gopala Krishna who is a signatory to the affidavit filed in support of the petition has not been specifically authorised to institute proceedings under the provisions of the Companies Act against the respondent-company, in which case, the petition filed by B. Gopala Krishna on behalf of the petitioner-company is liable to be dismissed in limine. 12. In support of his submissions, reliance has been placed on the decisions of the Supreme Court in Hanil Era Textiles Ltd. v. Puromatic Filters (P.) Ltd., AIR 2004 SC 2432; Hind Overseas (P.) Ltd. v. Raghunath Prasad Jhunjhunwalla [1976] 46 Comp. Cas. 91, Pradeshiya Industrial Investment Corporation of Uttar Pradesh v. North India Petro Chemical Ltd. [1994] 79 Comp. Cas. 835 (SC) and the decisions of this court in Ahmedabad Electricity Co. Ltd. v. Sanghi Spinners (India) Ltd. [2007] 140 Comp. Cas. 161/ [2007] 74 SC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... office of the company concerned is situate, except to the extent to which jurisdiction has been conferred on any District Court or District Courts subordinate to that High Court in pursuance of sub-section (2) ; and ( b ) where jurisdiction has been so conferred, the District Court in regard to matters falling within the scope of the jurisdiction conferred, in respect of companies having their registered offices in the district. (2) The Central Government may, by notification in the Official Gazette and subject to such restrictions, limitations and conditions as it thinks fit, empower any District Court to exercise all or any of the jurisdiction conferred by this Act upon the court, not being the jurisdiction conferred- ( a ) in respect of companies generally, by sections 237, 391, 394, 395 and 397 to 407, both inclusive ; ( b ) in respect of companies with a paid-up share capital of not less than one lakh of rupees, by Part VII (sections 425 to 560) and the other provisions of this Act relating to the winding up of companies. (3) For the purposes of jurisdiction to wind up companies, the expression 'registered office' means the place which has longest been the registered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 2007. Copy of the order passed by this court finds place at page No. 13 of the material papers filed along with the petition. 21. The resolution passed by the board of directors of the petitioner-company giving specific powers to Mr. V. Ravichandran was much earlier to the approval of the scheme by this court as to amalgamation of Ficom Organics Ltd., with the petitioner-company. A copy of the power of attorney executed in favour of B. Gopala Krishna dated July 2, 2007, is placed on record. The powers are enumerated under clauses 1 to 13, which read thus : "(1) To file civil suits, such as money suits, specific relief, etc., in any court of India under the Code of Civil Procedure, 1908, for recovery of sums due to the company from dealers of fertilisers or pesticides or both. (2) Filing of criminal complaints in any court in India under section 138 of the Negotiable Instruments Act, 1881, as amended by the Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988, against the defaulted dealers of fertilisers or pesticides or both. (3) To sign and verify plaints, written statements, petitions, vakalats, claims and objections, and memo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e lis is not merely between the petitioning party and the company sought to be wound up. Once the petition is admitted, creditors, contributories, shareholders, etc., seek redress in the proceedings and even oppose the winding up. The company is directed to be wound up depending upon a case made out whereupon the assets are taken over and distributed in accordance with the provisions of the Companies Act and the Rules. A suit for recovery of money is essentially a suit between the parties where no third party can seek any indulgence or impleadment. The proceedings under the Companies Act for winding up are entirely different, a special remedy provided for and the idea is not to restrict the proceedings to the parties alone and its range is widened and all steps taken in winding up proceedings are in public interest. Sometimes the relief for winding up is denied when it is against public interest. The settled principle is that the powers of attorney must be strictly construed, the rationale behind that principle being that the powers given are not abused by the agents and the actions are restricted within and only to the extent the power is indicated or given. Even when one reads th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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