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TMI Blog2022 (8) TMI 479X X X X Extracts X X X X X X X X Extracts X X X X ..... al Liquidator was appointed and all assets, offices and bank accounts were taken over by the Official Liquidator, and that the dishonored cheque bearing No. 206731 dated 30.06.2013 for an amount of Rs.8,00,000 is dated subsequent to the order of appointment of the Official Liquidator which is of the date 28.02.2013. 3. Reliance was placed on behalf of the petitioner on the verdict of this Court in M.L. Gupta & Anr. vs. Ceat Financial Services Ltd. 2006 SCC OnLine Del 1448 with observations in para 21 thereof which read to the effect:- "21. On the aforesaid averments, complaint under Section 138 of the Negotiable Instruments Act cannot be filed as on the date of presentation of the cheque the company was in liquidation and cannot be stated to have committed any offence. Even second and third accused (petitioners herein) were not the Incharge of the day-today affairs and conduct of the business of the company on that date. No doubt there are allegations of cheating as well and the complaint is under Section 420 read with Section 120B of the IPC as well. It would have reference to the date when the cheques were issued with intent to cheat and complaint to that extent may be maintai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ince complaint under section 138 of Negotiable Instruments Act is not maintainable if filed after the winding up of the company, summoning order issued is bad in law." 5. Reliance has also been placed on behalf of the petitioner on the order dated 16.03.2020 of the Court of the learned MM East KKD Delhi in CC Nos.47612/16, 46759/16, 51977/16 and 46966/16 to submit to the effect that the accused persons have all been discharged in the said complaints in view of the verdict of this Court in M.L. Gupta & Anr. vs. Ceat Financial Services Ltd. (Supra). 6. It is essential to observe that Co.Pet. 36/2013 as per the website of this Court is still pending and is listed for 22.08.2022. It is essential to observe the order dated 28.02.2013 in Co.Pet. 36/2013 which reads to the effect:- "1. The affidavit of service indicates that the Respondent has been served. 2. None appears for the Respondent despite service. In the circumstances, the petition is admitted. The Official Liquidator ('OL') attached to this Court is appointed as the Provisional Liquidator ('PL'). The OL is directed to take over all the assets, books of accounts and records of the Respondent company forthwith. A complete s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... just and equitable that the company should be wound up." As per Section 272 of the Companies Act, 2013, the petition for winding up can be presented by persons detailed therein:- "272. Petition for winding up.-(1) Subject to the provisions of this section, a petition to the Tribunal for the winding up of a company shall be presented by- (a) the company; (b) any contributory or contributories; (c) all or any of the persons specified in clauses (a) and (b); (d) the Registrar; (e) any person authorised by the Central Government in that behalf; or (f) in a case falling under clause (b) of Section 271, by the Central Government or a State Government. (2) A contributory shall be entitled to present a petition for the winding up of a company, notwithstanding that he may be the holder of fully paid-up shares, or that the company may have no assets at all or may have no surplus assets left for distribution among the shareholders after the satisfaction of its liabilities, and shares in respect of which he is a contributory or some of them were either originally allotted to him or have been held by him, and registered in his name, for at le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... up, the Tribunal may refuse to make an order of winding up, if it is of the opinion that some other remedy is available to the petitioners and that they are acting unreasonably in seeking to have the company wound up instead of pursuing the other remedy." (emphasis supplied) Thus, it is implicit through Section 273(1)(c) of the Companies Act, 2013 that the Provisional Liquidator of the company may be appointed by the Tribunal till the making of a winding up order. The order dated 28.02.2013 relied upon on behalf of the petitioner in Co.Pet. 36/2013 is not an order for winding up of the company M/s Catmoss Retail Private Limited. 8. Section 279 of the Companies Act, 2013 provides to the effect:- "279. Stay of suits, etc., on winding-up order.-(1) When a winding-up order has been passed or a provisional liquidator has been appointed, no suit or other legal proceeding shall be commenced, or if pending at the date of the winding-up order, shall be proceeded with, by or against the company, except with the leave of the Tribunal and subject to such terms as the Tribunal may impose: Provided that any application to the Tribunal seeking leave under this section shall be disposed of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs pending before the learned Metropolitan Magistrate. The Official Liquidator has not filed any reply to this application. The Provisional Liquidator in the present case was appointed on 28.02.2013 and the complaint was filed after the appointment of the Provisional Liquidator. Mr. Mayank Goel, learned counsel for the OL submits that without considering any aspect of the matter either in fact or in law, he has no objection in case the proceedings are continued before the learned MM subject to the condition that the OL who has taken over the assets and control of the company pursuant to the orders passed by this Court on 28.02.2013 be exempted from appearance and further no punitive order against the company or the OL be executed without the prior permission of this Court. Subject to the above, the applicant is permitted to proceed with the complaints bearing No. 2913/1/15, 2914/1/15 and 2912/1/15. The application stands disposed of. (emphasis supplied) CA No.53/2017 This application is moved by the applicant for seeking permission of this Court to continue with the Complaint Case No.2990/1/15 and 261/1/16 as mentioned in para 4 of the application under Section 138 read with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 138 of the Negotiable Instruments Act, 1881 on 12.08.2013 and that thus, the said complaint under Section 138 of the Negotiable Instruments Act, 1881 has been filed after the date 28.02.2013 when the Provisional Liquidator had been appointed in Co.Pet. 36/2013 qua M/s Catmoss Retail Private Limited. As observed herein above, however, it is essential to observe also that vide order dated 12.03.2013 in Co.Pet. 36/2013 in CA No.407 of 2013 filed seeking recalling of order dated 28.02.2013, the directions issued by order dated 28.02.2013 were kept in abeyance till the next date i.e., 06.05.2013 and vide order dated 06.05.2013 in CA No.407 of 2013, the order dated 28.02.2013 was recalled. Vide order dated 08.07.2013, the Official Liquidator was directed to not proceed further in the matter till the next date of hearing i.e., 02.08.2013. Vide order dated 02.08.2013, however, it was observed that in Co.Pet. 36/2013, the Official Liquidator had been appointed and was at liberty to proceed in accordance with law and the petitioner was directed to comply with the order of the Court dated 28.02.2013 regarding the publication of the citation and the citation was directed to be publish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the winding up petition. It is contended that the petition is malicious and that the petitioner has alternative remedy for recovery of its dues. The applicant has also averred, in the application, that the present petition has only been filed to pressurise the respondent for payment of the dues claimed by the petitioner. In the present case the inability of the respondent to pay the dues is writ large. The application is wholly devoid of any merit and is accordingly dismissed. CA No.1722/2013 None appears for the applicant. This is an application filed on behalf of the respondent company seeking stay of the order dated 02.08.2013 till the disposal of the application filed for dismissal of the company petition. The said application being CA No.1730/2013 already stands dismissed. Accordingly, the prayer seeking stay of the order dated 02.08.2013 no longer survives. The applicant has also prayed for recall of the order dated 02.08.2013 and has sought permission to file a reply to the petition. It is observed that the right of the respondent to file a reply had been closed after sufficient opportunity had been granted to the respondent. In any event, the respondent had fil ..... X X X X Extracts X X X X X X X X Extracts X X X X
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