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TMI Blog2012 (11) TMI 152X X X X Extracts X X X X X X X X Extracts X X X X ..... eferred to as the 'respondents') for non-compliance of the directions contained in the order dated 21.12.2006 had been dismissed. The impugned order had noted that in terms of its earlier directions dated 21.12.2006 if the petitioners/appellants are interested in taking over the control of the company, they should reimburse the respondents of all amounts which they had brought in for discharging the liabilities of the company after the order dated 21.12.2006 (which sum is admittedly a sum of Rs.16 lacs.) 2. Record shows that the petitioner had filed the present petition under Sections 397 & 398 of the Companies Act, 1956 before the Company Law Board (CLB) alleging oppression and mis-management. Various allegations were leveled against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered 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) on 01.03.2007 but the impugned order has noted th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2006. Four payments i.e. a sum of Rs. 6,50,000/- on 24.01.2007, another sum of Rs. 6,50,000/- on 24.01.2007, Rs. One lac on 12.05.2007 and Rs. 2 lac on 17.03.2007 had been made after 21.12.2006; contention of the respondent being that this money had been deposited by the respondent in the account of the company to pay the State Bank of India in order to clear the dues of the company. 10. There is no dispute to the factum that this money has been paid to the respondents. 11. In the rejoinder affidavit, the petitioner has submitted that these moneys which have been deposited are not out of the personal funds of the respondents but it is the money of the company which has been collected from the market. 12. Learned counsel for the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice which was given to the petitioner; he had choose; he had to elect between either of the two options i.e. either to take over the ownership and control of the company or to file a petition for winding up. Admittedly there is nothing on record to show that any communication had been sent by the petitioner to the respondent in terms of his submission that two letters dated 01.01.2007 7 27.01.2007 had been sent. There is no proof of dispatch; on queries put to the learned counsel for the petitioner on this point, he has fairly conceded to this. As noted supra, these communications had also been vehemently denied by the respondent. As such the respondent had nothing before him till the date of filing of this application (which was filed on 0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y in his capacity as a guarantor and he has a legal right to recover the aforenoted payment. In the rejoinder affidavit, the corresponding para 5 of the reply it has been accepted by the petitioner that the payments have been cleared on behalf of the company; there is no specific denial to the specific submission made by the respondent that these payments had been made by him in his personal capacity to which he is entitled to be reimbursed. 18. 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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