9911796707
TMI Blog2012 (11) TMI 152X X X X Extracts X X X X X X X X Extracts X X X X ..... se letters do not talk of personal guarantees or taking over of liabilities. Order of the CLB in granting an option to the petitioner to exercise his option to take over the management and control of the company but obviously after the payment of Rs. 16 lacs which has been made by the respondents out of their personal funds.This also appears to be a case where the petitioner has not come to the Court with clean hands; submission of the respondent that the petitioner has learnt about the one time settlement arrived at by the respondent with the Bank; and it was only then that he approached the CLB this is clear from the fact that he had filed the contempt application before the CLB on 01.03.2007 but he did not choose to mention it before the Board till more than two months later; i.e. on 03.05.2007; it appears that only when the petitioner learnt about the aforenoted settlement that he chose to approach the Court. His approach does not appear to be honest; he appears to be nursing some personal vendetta/grievance which cannot be addressed under the provisions of Sections 11 & 12 of the Contempt of Courts Act - In this background, it can in no manner be said that the impugned order s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t any consideration, the petitioner may chose the option of either taking the ownership/control of the company or file a petition for winding up of the company. No other relief can be granted in the facts of the case like asking the 2nd respondent to pay back the investments made by the petitioner as in a business venture, one has to take a risk and in the present case, both the sides appear to have lost their investment." 4. From the aforenoted order, it is clear that the respondents had offered to handover the company along with its machinery to the petitioner without any consideration; the petitioner was given the choice of either taking over the ownership and control of the company or in the alternate to prefer a petition for winding up of the company. 5. It is these directions which as per the submission of the petitioner have been flouted; submission being that there has been a willful disobedience of the directions contained in this order dated 21.12.2006 for which the respondents are liable for contempt. 6. Record shows that Co. Application No. 152/2007 seeking relief under Sections 11 12 of the Contempt of Courts Act had been filed before the Company Law Board (CLB ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shed to him only in the course of mediation proceeding (which had been ordered by the Court) which shows that a sum of Rs. 13 lacs had been received by the company for leasing out this machinery on a license basis; submission being that there is no explanation by the respondent as to why he remained silent about this agreement dated 28.01.2007 in his reply which was filed much later i.e. on 06.08.2007. 13. At the outset, it is relevant to note that the dispute before this Court is whether the respondent is liable to be hauled for proceedings under Sections 11 12 of the Contempt of Courts Act i.e. whether there has been any wilful disobedience of the directions contained in the order dated 21.12.2006. The controversy before this Court has to be restricted to the prayer made in the said application and its scope cannot be enlarged. This power has to be cautiously exercised. It may not be used as a tool for revenge; this discretion also may not be exercised on mere allegations. 14. It is in this background that the averments of the respective parties have to be appreciated. 15. Admittedly the directions contained in the order dated 21.12.2006 were two-fold. The respondent had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f payments made by the respondents, I find that in addition to Rs. 16 lacs paid to the bank as an one time settlement, the respondents have also made payments before and after the order of this Board dated 21.12.2006. I so far as the payments made before the said, the respondents cannot make any claim on the petitioners as the petitioners were to take over the management and control of the company as on the date of the said order. In so far as the liabilities cleared by the respondents after the date of the said order is concerned, the petitioners in case they desire to take over the ownership and control of the company, are bound to reimburse the respondents especially since the company has not been functioning since long and all the payments have been out of their personal funds of the respondent. In view of this, if the petitioners are still interested in taking over the control of the company, they should reimburse the respondents of all the amounts that they have brought in for discharging the liabilities of the company after the order dated 21.12.2006. The petitioners should communicate their decision to the respondents within 15 days from the date of this order whether they ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
