JUDGMENT

DHARMESH SHARMA, J.

CO.APPL. 58/2024 (application moved on behalf of Ex- Management seeking stay on proceedings)

1. This application is moved on behalf of the applicant Mr. Ashwani Chawla, Ex-Management/Director under Sections 446 and 447 of the Companies Act, 1956 [The Act] seeking stay of the proceedings initiated against the company under liquidation as well as the applicant in various Courts exercising criminal jurisdiction in Delhi under Section 138 of the Negotiable Instrument Act 1881 [NI Act].

2. Shorn of unnecessary details, it is stated that the company in question has been ordered to be wound up vide order dated 28.02.2013 and a Provisional Liquidator has been ordered to take over the assets and other records of the company (in liquidation) vide order dated 27.03.2014 passed by this Court.

3. The grievance of the applicant/Ex-Management is that certain complaints have been instituted under Section 138 of the NI Act against the company as well as directors, which cannot be allowed to continue in view of Sections 446 and 447 of the Act.

4. Advance notice of the present application has not been served upon the Official Liquidator. However, a copy of the same is ordered to be supplied to learned Senior Standing Counsel for the Official Liquidator. No reply is called for since only a question of law is involved.

5. Learned counsel for the applicant has vehemently urged that all legal proceedings which have been filed against the director after the winding up order dated 28.02.2013 cannot continue without the leave of this Court and there is a serious handicap in a director representing the company in such proceedings since all the records are now available with the Official Liquidator.

6. Learned counsel for the applicant has relied on decisions in Davi V. Thattil and Anr. v. Rosy Joseph and Ors, 2020 SCC OnLine Ker 13838; Shashikant Patel v. Swadhyay Flex Pack Pvt. Ltd., 2020 SCC OnLine MP 4643; Davi V. Thattil and Ors v. O.R. Sekharan and Ors., Crl. Rev. Pet. No. 1070/2014, Kerala; Vijay Steel Tubes & Fittings v. Apollo Pipes Ltd., MANU/DE/4485/2015; Ranjit Sham Chougle v. State of Haryana & Anr., Crl.Misc.No. M-36819/2013 (O&M); Ratan Lal Garera and Ors. v. State (NCT of Delhi) and Ors., 2006 SC OnLine Del 1442 ; ML Gupta & Ors. v. Ceat Financial Services Ltd., MANU/DE/9842/2006 and Govind Prasad Todi and Another v. Govt. of NCT of Delhi and Another, 2023 SCC OnLine Del 3717.

7. Learned Senior Standing Counsel for the Official Liquidator has also relied upon the decisions in Krishna Texport Industries Ltd. v. DCM Limited, MANU/DE/0787/2008 and D.K. Kapur v. Reserve Bank of India and Ors., MANU/DE/0038/2001.

ANALYSIS & DECISION:

8. Having given my thoughtful consideration to the submissions advanced by the learned counsel for the parties and on perusal of the record, the decisions in D.K. Kapur (supra) and Krishna Texport Industries Ltd. (supra) cited by the learned Senior Standing Counsel for the Official Liquidator are per incuriam in view of several pronouncements on the subject by the Supreme Court in subsequent cases. Suffice to state that the view taken in such decisions that expressions 'suit' or 'other legal proceedings' in Section 446(1) of the Act does not envisage complaint cases under Section 138 of the NI Act, are no longer the law. The same have not even been followed in the subsequent decisions of this Court in ML Gupta & Ors. (supra), Ratan Lal Garera (supra) and Vijay Steel Tubes & Fittings (supra).

9. The meaning assigned to the aforesaid expressions has come to be discussed in several decisions of the Supreme Court and avoiding the temptation to go into a long academic discussion, reference can be invited to decisions in P. Mohanraj & Others v. Shah Brothers Ispat Private Limited, (2021) 6 SCC 258 and Ashok Shewakramani & Others v. State of Andha Pradesh, (2023) 8 SCC 473. The issue is a simple one, which is no longer res integra as to whether the proceedings against the corporate debtor and its directo