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2014 Supreme(Del) 165
High Court of Delhi
THE HONOURABLE MR. JUSTICE R.V. EASWAR
MK Mahajan & Another
Versus
Indo Rollhard Indust. Ltd.
CO.PET. No. 136 of 2005 With CO. Appl. Nos. 898 of 2013 & 2159-2160 of 2013
Decided On : 17-01-2014
For the Petitioners:Ms. Vibha Mahajan Seth, Advocate.
For the Respondent:Sarat Chandra, Manoj Kumar Garg, Sachin Chandra, Advocates.
Headnote:
Civil Procedure Code, 1908 -Order 19 Rule 2 r/w section 151 - Company Law, - Sections 433(e), 433(f), 433(c) R/w 434 and 439 - CCR, 1959 - Rule 9 - Winding up - False statement - Discretion of Court - Respondent-company alleged that the petitioner No.1 made a false statement in the affidavit that he did not sign the board resolution is an afterthought - Petitioner No.1 himself admitted and identified his signature in the board resolution has not been raised in its counter affidavit filed in response to the company petition or in its reply - Allegation of discrepancies in the percentage of the shareholding of the petitioner No.1 in the respondent-company is said to be reflected in the order passed by the disciplinary committee of the ICAI - Application filed under Order XIX, Rule 2 of the CPC read with Rule 9 of the CCR, 1959 is an afterthought and has been filed only to prolong or delay the proceedings relating to the winding-up - No case has been made out by the respondent-company as to why the Court should exercise the discretion in its favour - Order of the Division Bench passed in the review petition filed by the petitioners attained finality - Court clarified that the admission order made by the learned Company Judge would remain undisturbed.
Companies Act, 1956 - Sections 433(e), 433(f), 433(c) R/w 434 and 439 - Civil Procedure Code, 1908 - Order 19 Rule 2 R/w section 151 - CCR, 1959 - Rule 9 - Injunction - Winding up - Filling of additional affidavit - Scope of - All the pleas taken by the respondent-company against the petition were discussed threadbare and prima facie observations were made justifying the admission of the winding up petition - Observations have attained finality in view of the order passed by the Division Bench in the review petition filed by the petitioners - Findings of the Company Judge and his prima facie observations on the admission of the company petition were upheld by the Division Bench - Additional affidavit filed by the respondent-company along with the additional documents is not permissible.
R.V. Easwar, J.
CO. APPL. Nos.2159-2160/2013
1. One M K Mahajan and another person filed CP No.136 of 2005 seeking winding up of the respondent-company. On 16.2.2009 the learned Company Judge passed an elaborate order. Paragraphs 45 and 46 of the said order are as follows :
“45. In view of the law discussed above and by carefully analysing the facts and records relied upon by both counsels, I am of the considered view that it is just and equitable to wind up the Company and allow this petition, under Sections 433(e), Section 433(f) & 433(c) read with Section 434 and 439 of the Act.
46. I, accordingly, admit this petition and direct that the respondent company be wound up. The official liquidator attached to this Court is appointed as the liquidator in respect of the respondent company. He shall forthwith take over all the assets and records of the respondent company and proceed according to law. Citation shall be published in the ‘lStatesman’ (English) and ‘lJansatta’ (Hindi) for 16.03.2009. Petitioner may take steps accordingly.”
2. Feeling aggrieved by the aforesaid order, the respondent-company filed an appeal to the Division Bench in Co. Appeal No.19/2009. By order dated 7th January, 2013, the Division Bench allowed the appeal and set aside the order of the learned Single Judge. The matter was remanded with the direction that the company petition be disposed of in accordance with law and with a further direction that in case an application is moved by the company under Rule 9 within 7 days, the same may also be decided in accordance with law.
3. On 27.2.2013, the matter was taken up by the learned Company Judge. It was submitted on behalf of the company that since the order dated 16.2.2009 was set aside in appeal, any steps taken pursuant to the said order were required to be undone, and in particular the possession of the premises and the records had to be returned to the company. This prayer was opposed on behalf of the petitioners on the ground that the Division Bench did not disturb the direction given by the learned Company Judge in his order dated 16th February, 2009 to the effect that possession of the premises may be taken over by the official liquidator. The learned Company Judge was unable to accept the submission made on behalf of the petitioners as in his view the order passed by the Division Bench in appeal was unambiguous inasmuch as the order of the learned Company Judge was set aside which means that no part of the same survived. Nevertheless the petitioners were granted liberty to seek clarification from the Division Bench. Pursuant thereto, review petition No.116 of 2013 was filed by the petitioners before the Division Bench in which it was pointed out that the Division Bench had only questioned the procedure adopted by the learned Company Judge in passing a rolled-up order and had even granted liberty to the company to make an application within 7 days for dispensing with the requirement of advertisement of the citation and having regard to the tenor of the judgment of the Division Bench, the setting aside of the entire order of the learned Company Judge was not appropriate and that part of the order of the learned Company Judge admitting the petition for winding up should be sustained.
4. After hearing both the sides the Division Bench on 5.4.2013 passed the following order on the review petition :-
“This Court has considered the submissions and also the judgment dated 16.02.2009. As is evident from the discussion in the final judgment of the Division Bench dated 7.1.2013, the point which persuaded the Court to set aside the earlier Single Judge‟s order (dated 16.2.009) was the rolled up procedure adopted by him in discussing the merits of the case, not advertising the proceedings, and straightaway directing winding up. The Court did not, however, comment and decide the merits of the observations of the Learned Single Judge which undoubtedly point to the fact that the petition needed to be admitted.
