9911796707
TMI Blog1995 (9) TMI 391X X X X Extracts X X X X X X X X Extracts X X X X ..... company petition No. 415/92 in the Bombay High Court for winding up the defendant Company. On 28.9.1983, the Company Judge, Bombay High Court appointed the official liquidator as Provisional liquidator under Section 446(1) of the Companies Act. The Petitioner in Ia has stated as follows:- (a) The Defendant most respectfully submits that prior to the company has become a sick unit as defined under the Sick Industrial Companies Act; in a Company Petition for winding up being Petition No. 415/92 initiated by M/s Nicco Corporation Ltd. against the Defendant Company, herein, the Hon'ble Company Judge of Hon'ble High Court of Judicature at Bombay having jurisdiction under the Companies Act, 1956, by order dated 28.9.1993 appointed an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the said winding up company petition entered into a compromise and mutually agreed to extend the time for the payment and consent terms recorded between the parties were filed in the Hon'ble High Court of Judicature at Bombay on or about 28.1.1994. The order of appointment of the Official Liquidator as Provisional Liquidator however continued to be subsisting and in force. Copy of the consent terms dated 27/28.1.1994 is annexed hereto and marked as Annexure C, and the same were accepted by the Hon'bic Company Judge vide order dated 28.1.1994 copy of which is annexed hereto and marked as Annexure D. (e) That the defendant company even failed to comply with terms of subsequent consent terms dated 28.1.1994 and committed default ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the judgment of the Supreme Court above referred to, no suit or other legal proceedings shall be commenced or if pending at the lime of winding of the order shall be proceeded with against the Company except by leave of the court and according to the Petitioner the plaintiff/respondent should obtain leave from the Bombay High Court for prosecuting the suit and till such lime the proceedings in the suit should be stayed. Sudarshan Chits case is of no assistance to us. (6) The learned counsel for respondent/ plaintiff contended that the petition filed by the defendant company is wholly misconceived. Neither Section 446 nor Section 442 would apply to the facts of this case. The Company was only a tenant of the premises and after the deter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... course, on .showing fulfilment of some fixed and prescribed conditions, It can only be made judiciously upon an examination of the totality of the facts which vary from case to case. It follows that the order to he passed must be discretionary and the power to pass it must, therefore, he directory and not mandatory. In other words, the word may used before slay in Section 442 of the Act really means may and not''must or shall in such a context. In fact, it is not quite accurate to say that the word may by itself, acquires the meaning of most or shall sometimes. This word, however, always signifies a conferment of power, that power may having regard to the context in which it occurs and the requirements contemplated fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for ex debito Justiciae. (10) Learned Senior Counsel invited my attention to Smt. Nirmala R. Bafna/Kershi Shivox Cambatta and others Versus Khandesh Spinning Weaving Mitts Co. Ltd and another/Official Liquidator and others, the Supreme Court observed as follows: - IN addition to this factual situation, there are two other circumstances which must be taken into consideration, viz., a. The tenancy rights, the company had, in the said flat may not be an asset for the purpose of liquidation proceedings and b. merely because a company goes in liquidation and a liquidator/official liquidator is appointed, the rights of the company vis-a-vis its landlord and/or its tenants do not undergo any change (11) The.KCRALA High Court had occas ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
