2002 (10) TMI 696 - HC - Indian Laws

Court dismisses objection on Power of Attorney, emphasizes exclusive remedy under Recovery of Debts Act

The court dismissed the objection regarding the Power of Attorney, allowing for rectification if needed. It emphasized the exclusive remedy under the ... Winding-up - Circumstances in which a company may be wound up Issues Involved:1. Validity of the Power of Attorney.2. Maintainability of the winding-up petition in the context of ongoing proceedings under the Recovery of Debts due to Banks and Financial Institutions Act, 1993 (RDB Act).Analysis:(A) Power of Attorney Issue:1. Stamp Duty Adequacy: The objection regarding insufficient stamping of the Power of Attorney (PoA) was dismissed as it was shown that the necessary Stamp Duty had been paid and adjudicated by the Collector of Stamps, New Delhi.2. Authority to File Petition: The respondent argued that the PoA did not specifically empower Mr. Tait to file a winding-up petition. The court referred to the case of *Shantilal Khushaldas & Bros. (P.) Ltd. v. Smt. Chandanbala Sughir Shah* where it was held that a PoA must explicitly authorize the filing of such petitions. However, the court also noted that procedural defects, such as inadequate PoA, could be cured by allowing the petitioner to rectify the defect or ratify the action, as supported by the Supreme Court in *United Bank of India v. Naresh Kumar*.3. Court's Approach: The court rejected the objection, emphasizing that procedural defects should not defeat substantive rights and allowed for rectification of the PoA if necessary.(B) Maintainability of Winding-Up Petition:1. Concurrent Proceedings: The petitioner had already initiated proceedings before the Debt Recovery Tribunal (DRT) under the RDB Act prior to filing the winding-up petition. The court noted that the petition should be dismissed since the petitioner had already chosen an alternative forum for recovery.2. Case References:- The court distinguished the case from *Karam Chand Thapar & Bros. (Coal) Sales Ltd. v. Acme Paper Ltd.*, where the winding-up petition was allowed despite ongoing civil suits because the special remedy under the RDB Act was not considered.- The court referred to *Allahabad Bank v. Canara Bank*, which clarified that the RDB Act provides exclusive jurisdiction to the DRT for adjudication and recovery of debts, thereby ousting the jurisdiction of other courts, including the Company Court.3. Legal Principles: The court emphasized that a winding-up petition is not a legitimate means to enforce payment of a disputed debt. It should not be used to exert pressure on the debtor. The court also highlighted that once a party has chosen an efficacious remedy under the RDB Act, pursuing a winding-up petition would be vexatious and intended for harassment.4. Exclusive Jurisdiction: The court reiterated that the DRT has exclusive jurisdiction for adjudicating and recovering debts due to banks and financial institutions, as per sections 17 and 18 of the RDB Act. The court further noted that the Companies Act is a general statute, whereas the RDB Act is a special statute with overriding provisions.5. Conclusion: The court found it inappropriate to exercise its jurisdiction under sections 433 and 434 of the Companies Act when the petitioner had already opted for the remedy under the RDB Act. Consequently, the winding-up petition and all pending applications were dismissed.Summary:The court addressed two primary issues: the validity of the Power of Attorney and the maintainability of the winding-up petition given ongoing proceedings under the RDB Act. The court dismissed the objection regarding the PoA, allowing for its rectification if necessary. On the second issue, the court emphasized that the RDB Act provides an exclusive and efficacious remedy for debt recovery, thereby ousting the jurisdiction of the Company Court for winding-up petitions in such cases. The petition was dismissed to prevent multiple and vexatious litigations.