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TMI Blog2019 (4) TMI 1861X X X X Extracts X X X X X X X X Extracts X X X X ..... Reserve Bank of India Act, 1934 (RBI Act), the learned Company Judge vide order dated 15.2.2015 was satisfied that a case on all the four grounds of Section 45MC-1 of the RBI Act is made out against the appellant No.1-Company and passed a detailed order. Paras 73 to 76 of the order read as under:- "73. In view of aforesaid, a case for advertising the petition in accordance with Rule 24 of the Companies (Court) Rules, 1959 is made out. Hence, petitioner RBI is directed to advertise the petition in accordance with Rule 24 of the Companies (Court) Rules, 1959. The notice of the petition be advertised as per rules in two newspapers namely 'Hindustan Times' in English and in "Hindustan' in Hindi in their Lucknow editions. The petition shall also be published in the official gazette of the State fixing 02.04.2019 as the next date of hearing of the petition. The petitioner shall also file an affidavit of service in compliance of the aforesaid directions by the next date fixed. 74. Looking into the aforesaid facts and circumstances of the case, to preserve the assets of the company, the Official Liquidator attached to this Court is appointed Liquidator provisionally of Sah ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reholder nor a Director at the time of commencement of the winding-up proceedings, i.e., 11.9.2015. A Vakalatnama has been signed by him. The company appeal has been filed without authorization and its registration itself is without authority of law and the registry has wrongly registered it. 7. The appeal is liable to be rejected as it has been filed in gross violation of provisions of inter alia Order VI Rule 15; Order XIX Rule 3 and Order XXIX of the Civil Procedure Code, 1908 read with Rule 6 of the Company (Court) Rules, 1959 as well as Rule 21 of the Company (Court) Rules, 1959 and Chapter IV (Specifically Rules 9 to 12) of the Allahabad High Court Rules, 1952 and a bare perusal of the affidavit in support of the appeal is neither duly verified nor properly sworn. 8. The affidavit in support of the memo of appeal has been sworn by one Dinesh Shukla as 'pairokar' of the 'appellant' without any authorization having been executed in his favour. The deponent in question is not a principal officer of the appellant No.1 so as to be competent to depose on the facts involved. The deponent is only a paltry employee of the appellant-company who is not at all involved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmitted that as the affidavit has been filed by a stranger and therefore the present appeal is not maintainable and is liable to be dismissed. 12. Per contra, learned Senior Counsel for the appellant has submitted that the appellant No.2 (Mr. Satish Kumar Singh) was holding shares of the company since 1993 and at present he is holding 31000 shares. He has also drawn our attention towards Annexure - R2 which is filed alongwith the reply and submitted that the appellant No.2 was authorized by the aforesaid to sign and execute affidavits, applications, etc. before any Court/Authorities and also in pending matters by or against the company that is filed and/or may be filed and/or served or may be served in relation hereto and to do all such other acts, deeds and things as may be necessary to give effect to the above resolution. He has also drawn our attention towards resolution dated 24.11.2015 passed in favour of Dinesh Shukla which is at page 769 of Vol.II. 13. He further submitted that in the notice dated 19.2.2019 issued by the Office of the Official Liquidator with regard to taking assets of company, appellant No.2 has been mentioned as Director of the company. The pleading had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h non-banking financial company under the Companies Act, 1956 (1 of 1956). (2) A non-banking financial company shall be deemed to be unable to pay its debt if it has refused or has failed to meet within five working days any lawful demand made at any of its offices or branches and the Bank certifies in writing that such company is unable to pay its debt. (3) A copy of every application made by the Bank under subsection (1) shall be sent to the Registrar of Companies. (4) All the provisions of the Companies Act, 1956 (1 of 1956) relating to winding-up of a company shall apply to a winding-up proceeding initiated on the application made by the Bank under this provision." Companies (Court) Rules, 1959 R.6. Practice and Procedure of the Court and provisions of the Code to apply -- Save as provided by the Act or by these rules the practice and procedure of the Court and the provisions of the Code so far as applicable, shall apply to all proceedings under the Act and these rules. The Registrar may decline to accept any document which is presented otherwise than in accordance with these rules or the practice and procedure of the Court. R.21. Affidavit verifying petition -- Ever ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nformation derived from a document, full particulars of the documents shall be stated and the deponent shall verify that he believes such information to be true. 18. Provisions of Order VI - Pleadings Generally, Order XIX - affidavits, Order XXIX - Suits by or against Corporations read as under :- ORDER VI : PLEADINGS GENERALLY 15. Verification of pleadings (1) Save as otherwise provided by any law for the time being in force, every pleading shall be varied at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case. (2) The person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true. (3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed. (4) The person verifying the pleading shall also furnish an affidavit in support of his pleadings. ORDER XIX : AFFIDAVITS 3. Matters to which affidavits shall be confined (1) Affidavits shall be confined to such f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1997 [hereinafter referred to as '1997 Act'], it becomes evident that III-B of the RBI Act is a self-contained code. The provisions contained in the RBI Act being regulatory in nature will not apply to cases of scheme submitted for approval under the Companies Act. The Companies Act is a prior enactment as the same was enacted in the year 1956, whereas Chapter III-B was inserted in the RBI Act by Act No. 23 of 1997 w.e.f. 9.1.1997. The Apex Court in the case of Integrated Finance Company Ltd. v. Reserve Bank of India and others [(2015) 13 SCC 772] has held that the provisions of the RBI Act would prevail over the Companies Act, it being a later enactment. As the order in winding-up petition has been passed against the appellants and the petition for winding-up was filed under the provisions of Companies Act, a plain reading of Sub-Section (4) of Section 45-MC would indicate that the proceedings of the Companies Act would apply to winding-up proceedings. It is settled proposition of law that appeal is deemed to be continuance of proceedings. Thus, we are of the view that the appeal filed by the appellants is maintainable against the order dated 15.2.2015 under the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant No.2 after commencement of winding-up is void. 26. As per Sub-Section (2) of Section 536 of the Companies Act, 1956, after filing of winding-up proceedings, no alteration in the status of members of the company is permissible. If any alteration is made after commencement of the winding-up proceedings, the same shall be void. The Apex Court in the case of State Bank of Travancore v. Kingston Computers India Private Limited [(2011) 11 SCC 524] has held that the respondent therein had not produced any evidence to prove that Shri Ashok K. Shukla was appointed as a Director of the Company and a resolution was passed by the Board of Directors of the Company to file a suit against the appellant therein and authorized Shri Ashok K. Shukla to do so. The letter of authority issued by Shri Raj K. Shukla, who described himself as the Chief Executive Officer of the Company, was nothing but a scrap of paper because no resolution was passed by the Board of Directors delegating its powers to Shri Raj K. Shukla to authorize another person to file a suit on behalf of the Company. 27. In the present case also, the winding-up petition has been filed on 1.9.2015, whereas the Appellant No.2/Sa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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