TaxTMI 
TaxTMI 
TaxTMI 
2018 (8) TMI 435
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.... 07, 2018 passed by this Court in C.A. No. 51 of 2018 with C.P. No. 822 of 2014. By the said order, this Court directed winding up of the company, Jai Balaji Industries Ltd., [hereinafter referred to as the "company (presently in liquidation)"] and directed the Official Liquidator to forthwith take possession of all the assets and properties of the company (presently in liquidation) lying at its registered office and the factories, together with its business and affairs. The brief facts leading up to the filing of the present application are that the petitioning creditor, Lakhotia Transport Company Pvt. Ltd. filed the application, C.P. No. 822 of 2014, before this Court claiming winding up of the company (presently in liquidation)" for non-payment of its dues of Rs. 4,69,46,461/- on account of transportation charges of the goods of the company ( presently in liquidation) from its factories to various places. The company (presently in liquidation) contested the winding up application, C.P. No. 822 of 2014. By an order dated August 17, 2015 a learned Single Judge of this Court admitted the said winding up application for the principal sum of Rs. 3,87,49,0003/-, together with interes....
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.... praying for, stay of all further proceedings in the winding up application, C.P. No. 822 of 2014. During the pendency of the said application the petitioning creditor and the said company (in liquidation) agreed to settle their disputes in the winding up application and by a consent order dated April 17, 2017 a learned Single Judge of this Court disposed of the said application, C.A. No. 133 of 2017. In terms of the said consent order dated April 17, 2017 the company (presently in liquidation) was liable to pay a sum of Rs. 3,77,88,569/- to the petitioning creditor, out of which Rs. 7,88,569/- was payable at the time of passing of the said order and balance sum of Rs. 3,70,00,000/- would be payable by the company (presently in liquidation) to the petitioning creditor in monthly instalments of Rs. 2,00,000/- each, starting on and from May 02, 2017 and thereafter, on or before the seventh day of each succeeding month. However, in case of default in payment of any two consecutive instalments the petitioning creditor would be entitled to proceed with the winding up proceeding as before. As per the consent order, subject to payment of the entire sum of Rs. 3,77,88,569/- by the company ....
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....ds, it had granted financial assistance to the company (presently in liquidation). Thereafter, State Bank of Indore, State Bank of Mysore, State Bank of Bikaner and Jaipur, State Bank of Travancore and State Bank of Hyderabad which now stand merged with the applicant had also granted financial assistance to the company (presently in liquidation). All such financial assistance granted to the said company now stands vested in the applicant bank and more than Rs. 1.82 crores is the debt which is owed by the company (presently in liquidation) to the applicant bank. Therefore, when the IBC of 2016 came into force and the winding up application, C.P. No. 822 of 2014 remained adjourned sine die in terms of the said order dated October 05, 2015, the applicant bank filed an application, C.P. No. 767/KB/2017, under Section 7 of IBC before the NCLT, Kolkata Bench for initiating corporate insolvency resolution process in respect of the company (presently in liquidation). According to the applicant bank, it filed the said proceeding under IBC against the company (presently in liquidation) to adopt the resolution route within a time frame for maximisation of the assets of the latter and for the ....
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....ing that the application will be taken up for hearing on October 14, 2015 but subsequently, when the company (presently in liquidation) was registered with BIFR, by the order dated March 22, 2016 the hearing of the winding up application, C.P. No. 822 of 2014 was adjourned sine die. Thus, there was no occasion for the applicant bank to participate in the said winding up application on June 07, 2018 without any fresh advertisement. It was strongly contended that after advertisement of the winding up application, C.P. No. 822 of 2014 in the newspapers, the same assumed the representative character and neither the petitioning creditor nor the company (presently in liquidation) was entitled to obtain the said consent order dated April 17, 2017 in C.A. No. 133 of 2017 providing for payment of the dues of the petitioning creditor above by the company (presently in liquidation). It was submitted that the petitioning creditor and the company (presently in liquidation) surreptitiously obtained both the said orders dated April 17, 2017 and June 07, 2018 without giving any opportunity to the applicant bank and other creditors of the company (presently in liquidation) to participate in the win....
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.... by the said order dated August 17, 2015 passed by the learned Single Judge of this Court the petitioning creditor was entitled to proceed with its winding up application, C.P. 822 of 2014 and this Court rightly allowed the application C.A. No.51 of 2018 by passing directing winding up of the company (presently in liquidation). In support of such contention, reliance was placed by the petitioning creditor on a Single Bench decision of the Bombay High Court in the case of Ashok Commercial Enterprises-vs- Parekh Aluminex Ltd. reported in (2017) 202 Comp Cases 148. It was further argued for the petitioning creditor that Rule 99 of the Rules of 1959 provides for advertisement of the winding up application in the newspaper only once and in this case, when the advertisement of the winding up application, C.P. 822 of 2014 had already been published in the newspapers on September 14, 2015, the submission of the applicant bank that the winding up order dated June 07, 2018 should be recalled on the ground of absence of further advertisement of the winding up application is fallacious. It was emphasised that it is not the case of the applicant bank that the company (presently in liquidation) ....