TaxTMI 
TaxTMI 
2009 (12) TMI 513
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....out of C. P. No. 242 of 2008 by which the said learned judge stayed the previous order of winding up passed by his Lordship with a direction upon the official liquidator to hand over possession of the hotel owned by the company in liquidation to the said company. His Lordship, accordingly, stayed the order of winding up and the official liquidator was directed to hand over possession of the hotel in question in the course of that day. His Lordship further recorded that the company in liquidation was ready to hand over a pay order amounting to Rs. 2,11,500 and as the petitioning creditor was not in a position to accept the same on that day, the question would be considered on the next adjourned date. 2. Being dissatisfied, the petitioning....
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....ated January 6, 2009, towards payment of the second instalment. The said cheque was, however, dishonoured on presentation. 7. In view of the terms of the order dated December 12, 2008 and the consequent default committed by the respondent, the appellant made necessary publication in the newspaper on January 20, 2009 and affirmed the affidavit dated February 16, 2009 and submitted the same before the learned single judge. 8. The matter appeared before the learned single judge from time to time and on March 17, 2009, his Lordship was pleased to direct the official liquidator to take possession of the assets of the company. 9. Pursuant to such direction, the official liquidator convened a meeting of the creditors on April 22, 2009, wh....
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.... However, the learned advocate-on-record of the appellant was present in court, when at the time of mentioning of matter, the said Item No. 99 was mentioned by the learned advocate for the respondent and the learned single judge assured the said learned advocate that the said Item No. 99 would be taken up in the list on that date. It was specifically indicated in the list that the learned single judge would take up items Nos. 1, 2, 3, 6 and 10 at 10.30 a.m. and thereafter, the listed matters would be called. 14. According to the appellant, suddenly after item No. 2 was called, item No. 99 was called on and the learned single judge started proceeding with the matter ex parte. The learned advocate for the appellant requested the learned ju....
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....ed by the principles and should definitely come to the conclusion that the principles are applicable to the facts of the given case. (3)Mere consent of all the creditors for stay of winding up is not enough. (4)The offer to pay in full or to make satisfactory provisions is not enough. (5)The court will consider the interest: of commercial morality and not merely the wishes of the creditors and the contributories. (6)The court will refuse an order if there is evidence of misfeasance or of irregularity demanding investigation. (7)A firm and acceptable proposal for satisfying all the creditors must be before the court with material particulars. (8)The jurisdiction for stay can only be used to allow in proper circumstances a r....
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....ression of material facts of dishonour of the cheque dated January 6, 2009. The mere fact that after committing default, the company on a subsequent date was in a position to pay the entire dues was not sufficient to order stay as pointed out above. It appears from the order impugned that the learned single judge has without recording any reason directed the official liquidator to return possession already taken pursuant to the earlier order and fixed a date for further hearing. The procedure adopted by the learned single judge was totally irregular as mentioned above and was opposed to the well-settled principles which are required to be followed before exercising the discretion of stay. 19. We consequently allow the appeal, set aside t....