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TMI Blog2017 (2) TMI 519X X X X Extracts X X X X X X X X Extracts X X X X ..... us doubts on that. From the statement of affairs filed, the manner of giving the information is primafacie suggestive of diversion of funds. Petition under Section 9 of the Arbitration and Conciliation Act, 1996 - Held that:- Surprisingly, in the appeal, the appellant itself has pleaded that the learned Company Judge had directed the appellant to formulate a scheme of compromise/arrangement with other creditors and if such a scheme was filed the learned Judge would consider removing the Provisional Liquidator. The appellant did not file any scheme but chose to selectively settle the disputes with a few creditors. During arguments in appeal Sh.Atul Nanda, learned Senior Counsel for the appellant, had requested us to defer hearing of the appeal to enable appellant to file a scheme of compromise/arrangement with the other creditors. The appellant is free to do so before the learned Single Judge. The facts which we have noted, which emanate from the statement of affairs filed by the directors of the appellant do not warrant any of the impugned order to be set aside in appeal. The debts owned by the appellant are much. The rosy picture painted in the balance sheet, is not so rosy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istered for offences of cheating and misappropriation against the Managing Director of the company by the Economic Offences Wing of the Delhi Police. The first Company Petition No.357/2015 was admitted. The Official Liquidator attached to the court was appointed as the Provisional Liquidator. The Directors of the company were directed to file the statement of affairs within 21 days. 3. CA No.748/2016 was filed by the appellant in which prayer made was to keep in abeyance the order dated February 08, 2016 with further prayer that the Official Liquidator be directed to de-seal the office premises of the appellant. It was pleaded in the application that the appellant had finalized a deal for sale of one its immovable property to generate funds to meet immediate requirements of the creditors. The said application was listed before the learned Company Judge on February 26, 2016 and notice thereof was issued to the petitioner returnable for March 23, 2016. Another Company Application No.1043/2016 came to be filed and along with the previous applications was listed before the learned Company Judge on March 23, 2016. The learned Judge noted that as per the application on November 02, 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reof and the appellant company the learned Judge declined to accept the request. 4. A perusal of the prolix appeal spanning 41 pages, would evince that challenge to the order dated February 08, 2016 is premised on the fact that merely because a cheque issued by the appellant company has been dishonoured would not ipso facto make liable the appellant company to be wound up and that the learned Company Judge gravely erred in admitting CP No.357/2015 and appointing Official Liquidator attached to the Delhi High Court as the Provisional Liquidator. 5. It is pleaded by the appellant that it has settled its dues with 80% of the creditors and with all family members and associates of the petitioners of the five company petitions which were listed before the learned Company Judge when CP No.357/2015 was admitted. Appellant pleads that once it had settled the dispute with the petitioners of the five company petitions, and all of them had agreed for the company petitions to be disposed of in terms of the settlement, the learned Company Judge ought not to have adjourned the matter, calling upon the Official Liquidator to proceed ahead to take charge of the properties of the company. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 602/-. 8. In our opinion, the appellant cannot challenge the order dated February 08, 2016 by filing the instant appeal much beyond limitation without seeking delay to be condoned in challenging the said order. That apart, the further orders passed in the company petition and the Company Applications filed by the appellant before the learned Company Judge show that the appellant did not dispute the debt due to the five company petitioners, evidenced by the fact that the appellant proceeded to negotiate and enter into settlement with the five company petitioners. Similarly the appellant started entering into settlements with a few other petitioners of company petitions which were filed, but not all. 9. The record of the instant appeal would show, and we highlight that it is the case of the appellant itself, that it had entered into settlement agreement with 14 other petitioners who had filed company petitions seeking winding up of the appellant. It is the case of the appellant that it is actively negotiating to settle the disputes with 8 other petitioners who have likewise filed the company petitions. We find that the appellant filed an affidavit on July 19, 2016 bringing to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce that the learned Liquidator was unable to take possession of many flats on April 28, 2016 because he found the same to be occupied but no occupant could show a document evidencing the flat occupied, to be formally transferred by the appellant to the person in possession. This reinforces the prima-facie view taken by the learned Company Judge on February 08, 2016 that there was a grave and credible apprehension that the assets of the appellant may be imperiled. 16. Since proceedings are pending before the learned Company Judge we do not intend to return any determinative finding but suffice to state that from the aforesaid facts noted it appears those who were in charge of the affairs of the appellant have much to explain. There are traces of the funds being siphoned off. 17. That apart, the appellant cannot be permitted to satisfy the claims of a few creditors on preferential basis, for if the assets fall short it would mean a large number of unsecured creditors being left high and dry. 18. Surprisingly, in the appeal, the appellant itself has pleaded that the learned Company Judge had directed the appellant to formulate a scheme of compromise/arrangement with other cre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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