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2015 (5) TMI 90
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....on in terms of rules has been ordered. The said Company Petition No. 20 of 2012 has been filed alleging that the applicant is indebted to the respondent No. 1 in the sum of Rs. 80,00,000/- (Rupees Eighty lakhs only) and that despite notice dated 26.06.2012 for payment of that amount, the applicant had failed and neglected to pay the same. The respondent (original petitioner) has approached the Court with unclean hands by hiding various facts and false statements have been made to achieve illegitimate goal of recovering money, by hiding the true facts. On 05.12.2012 the applicant received the notice in the said Company Petition. In order to defend its interest, before this Court, the applicant appointed and engaged the services of Advocate Shri. Ajit R. Kantak. In terms of the instructions given by the applicant, Advocate Shri. Kantak was duly representing the applicant in the said company petition. Due to the complexity of the matter and due to Advocate Kantak's preoccupation with work, the applicant thought of engaging the services of Advocate Shri. S.D. Padiyar in the matter. The applicant discussed the said aspect with Advocate Shri. Kantak who consented to the same. Accordi....
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....3.2013 and on having found that aforesaid company petition has not being listed for admission, Advocate Shri. Kantak was under a bona fide impression that there was no listing of the said company petition in the cause list displayed for the said week. The said additional board also skipped the attention of Advocate Shri. Padiyar and his office and the applicant had delivered the N.O.C. issued by Advocate Kantak to Advocate Padiyar and the name of Padiyar was not displayed on the additional board. Advocate Padiyar was also under an impression that Advocate Kantak was yet to issue N.O.C. and seek discharge in the matter. The Director of the applicant bonafidely believed that since Advocate Padiyar was briefed in the matter he would be representing him and hence did not apprehend that non delivering of the N.O.C. of Advocate Kantak would preclude Advocate Padiyar from appearing in the matter. Since no specific date was fixed in the matter nor matter was mentioned for circulation, Advocate Kantak and Advocate Padiyar bonafidely did not expect the company petition to be listed for admission on an additional board displayed 20.03.2013. The matter thus skipped the notice of Advocate Kanta....
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....ate for the petitioner had notice of appearance of the matter on the board. The above is not believable. The applicant still have ample opportunity in law to defend the company petition by filing appropriate reply. The major portion of the contents of the application and most of the documents annexed thereto are irrelevant insofar as the application for setting aside the order of admission, is concerned. It is nowhere the case of the applicant that statutory notice under Section 433 and 434 of the Companies Act was not received. It is also not the case of the applicant that there are no bona fide dues as admittedly declared and voluntarily stated in the audited balance sheet submitted to the Registrar of companies, which balance sheet was duly certified by Chartered Accountant of the company on the basis of true facts of the books of accounts of the company. The application has been deliberately filed with malafide intention of creating undue hurdles and to get the order of admission of petition set aside by suppressing the true and correct facts as admittedly declared in the audited balance sheet of the company. No case has been made out for setting aside the admission order. 6....
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....the company petition. He further submitted that all the said facts are irrelevant for the purpose of deciding the application for recall of the order. He submitted that the respondent is not disputing the power of the Court to recall the order. He urged that absolutely no case is made out for such recall. He submitted that absolutely no cause has been shown for not appearing on the date when the order of admission was passed. He submitted that advertisement of the petition has been already made and therefore whatever prejudice was to be caused to the applicant has been already caused. He submitted that power to recall cannot be exercised for the sake of asking. He urged that the application does not bear any merits and therefore is liable to be rejected. Learned counsel relied upon the following Judgments : (1) S. Natrajan v. Sama Dharman [2014] 9 SCALE 3. (2) CIT v. Vardhman Overseas Ltd. [2012] 343 ITR 408] (3) ESPN Software India (P.) Ltd. v. Modi Entertainment Network Ltd. (4) R. Sureshchandra & Co. v. Vadnere Chemical Works (AIR 1991 Bom. 44). 9. I have gone through the material on record. I have considered the arguments advanced by the learned counsel for the p....
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....y could be wound up for reasons enumerated in Clauses (a) to (f) of Section 433, this petition is only under the just and equitable clause in Section 433(f) as well as under Section 433(c). Under Section 433(c), if the company does not commence its business within a year of its incorporation, or suspends its business for a whole year, that will be ground for initiating winding up proceedings. Especially, in such a case, there is all the more reason for the court to be overcautious to find, on the allegations in the petition and the materials placed before it, that there are prima facie grounds. Even admission of a petition which will lead to advertisement of the winding-up proceedings is likely to cause serious injury to the company, if ultimately the application has to be dismissed. It will result in loss of reputation to the company and its credibility in the eyes of the public will be lost resulting in loss of business also. The interest of the applicant alone is not the predominant consideration. The interest of the shareholders of the company as a whole and other interests also will have to enter the area of judicial satisfaction before giving a verdict on the question of admi....
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.... notice to show cause why a petition for winding up be not admitted, the Company must show cause and contend that the filing of the petition amounts to an abuse of the process of the Court. It has been held that if the petition is admitted, it is still open to the Company to move the Court that in the interest of justice or to prevent abuse of the process of the Court, the petition be not advertised. It is held that such an application may be made where the Court has issued notice under the last clause of Rule 96, and even when there is an unconditional admission of the petition for winding up. It has been further held that the power to entertain such an application of the Company is inherent in the Court and Rule 9 iterates that power. The above power of the Court is not disputed by the respondent in the present case. However, in the above case also the effect of advertisement of the petition being already made has not been considered and hence the above judgment does not help the applicant in any manner. In the case of ''G.T. Swamy" (supra), also only the order of winding up was sought to be recalled and not the order of admission and advertisement and hence the above cas....
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....he minutes of Order agreed to and signed by the parties. Thus, the above Company Petition No. 879 of 2009, after the order of admission and the order of winding up was recalled, was settled amicably between the parties. Such is not the case in the present case. The parties do not say that they have agreed for some terms. The main order dated 2nd September 2010 passed in Company Application (L) No. 438 of 2010 has not been produced by the applicant, for reasons not known. It is possible that since the matter was to be disposed of as per the minutes, the parties agreed for recalling the earlier orders. The above orders, in my view, cannot help the applicant in the present case. 16. The other judgments relied upon by the parties are on merits of the matter and hence I am not inclined to discuss them here. 17. The order of admission was passed on 21.03.2013. The advertisement was made on 19.04.2013. On 24.03.2013, the applicant through Advocate Shri Kantak had come to know that the Company petition was listed for admission on 21.03.2013 and order admitting and advertising the petition in terms of the rules came to be passed. Nothing had prevented the applicant from immediately mo....