TaxTMI 
TaxTMI 
2022 (8) TMI 479
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....the winding up of the company and the Official 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....
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....truments Act and not under section 420 read with section 120 B of the IPC. Since 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 a....
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....strar its financial statements or annual returns for immediately preceding five consecutive financial years; or (e) if the Tribunal is of the opinion that it is 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 th....
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....the Tribunal shall not refuse to make a winding-up order on the ground only that the assets of the company have been mortgaged for an amount equal to or in excess of those assets, or that the company has no assets. (2) Where a petition is presented on the ground that it is just and equitable that the company should be wound 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 ....
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.... and 2911/1/15. The application stands disposed of. CA No.52/2017 This application is moved by the applicant for seeking permission of this Court to continue with the Complaint Case No.2913/1/15, 2914/1/15 and 2912/1/15 as mentioned in para 3 of the application under Section 138 read with Section 142 of the Negotiable Instruments Act against the Respondent and its directors 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 ....
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....is passed, complaint under Section 138 would be maintainable against the company as well as its Directors as mere filing of the winding up petition would not be of any consequence. In such winding up petition even if winding up order is passed on a later point of time, namely, after the filing of the complaint under Section 138 of the Act, such a complaint can still continue." 12. Undoubtedly, in the instant case, the complaint has been instituted under 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 Offic....
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....is directed to be wound up. The petitioner shall publish the notice of winding up in 'The Hindustan Times' (English) and 'Dainik Jagran' (Hindi) within a period of four weeks from today. The Official Liquidator shall file a report at least one week prior to the next date of hearing. Renotify on 26.05.2014. CA No.1730/2013 None appears for the applicant, however, I have perused the contents of the application. This is as application filed on behalf of the respondent company for dismissal of 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 ....