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2022 Supreme(Guj) 1204
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Sonia Gokani, Nisha M. Thakore, JJ.
N K Industries Limited, Through Hasmukh Kacharabhai Patel – Appellant
Versus
Vemag Engineers Private Limited – Respondent
R/First Appeal No. 2691 of 2019
Decided On : 28-09-2022
Advocate Appeared:
For the Appellant : Mr Alay Shah For Gandhi Law Associates
For the Respondent: Mr Mihir H Pathak
The voluntary nature of a compromise and its compliance with the relevant procedural rules are crucial in influencing the court's decision.
Headnote:
Compromise - Civil Suit - Companies Act, 2013 - Section 102 - Order 23 Rule 3 of the Code of Civil Procedure, 1908
Fact of the Case:
The appellant filed an appeal against the judgment and decree passed by the Civil Judge, Vadodara, which decreed the amount payable by the appellant to the respondent along with interest. The parties arrived at a compromise, and the court directed the disbursement of the amount in favor of Vemang Engineers.
Finding of the Court:
The court found that the parties had voluntarily entered into the compromise without coercion or compulsion. The court allowed the appeal and modified the judgment and decree in accordance with the consent terms.
Issues: The issues involved the modification of the decree and the disbursement of the amount in accordance with the compromise.
Ratio Decidendi: The court's decision was influenced by the voluntary nature of the compromise and the provisions of Order 23 Rule 3 of the Code of Civil Procedure, 1908.
Final Decision: The court allowed the appeal, modified the judgment and decree, and directed the disbursement of the amount in favor of Vemang Engineers.
ORDER :
Sonia Gokani, J.
1. This is an appeal preferred by the appellant on 24.11.2021, when is taken up for final hearing, the parties have disclosed of their having arrived at compromise. This Court, therefore, on 13.09.2022 passed the following order :
“1. This first appeal is preferred against the judgment and decree dated 30.10.2018 passed by the learned 13th Additional Senior Civil Judge, Vadodara in Special Civil Suit No.986 of 2000, where the Court decreed the amount of Rs.17,37,705/- payable by the appellant to the respondent together with interest calculable at the rate of 24% p.a from the date of institution of the suit.
2. The appeal had been admitted on 29.06.2022.
3. Separate application was moved by the original respondent in first appeal. This Court passed the following order on 29.06.2022:
“1. The applicant is the original respondent in the First Appeal preferred by the opponent challenging the judgment and decree dated 30.10.2018 passed by the 13th Additional Senior Civil Judge, Vadodara in Special Civil Suit No.986/2000 whereby the Court has decreed an amount of Rs.17,37,705/- payable by the appellant to the respondent with interest.
2. On admission, on 19.10.2019, the Court had noted that the principal amount of Rs. 17.37 lakhs (rounded off) had not been challenged and challenge essentially remained qua the interest. The amount of Rs. 17,37,705/- has been deposited by the appellant as per the direction of the Court. An application for withdrawal therefore has been moved by the applicant. The applicant intimated the learned advocate about the closure of the private limited company and the management having been given to the proprietary firm in the name and style of Vemag Engineers.
3. It is the say of the applicant that after the decree came to be passed on 30.10.2018, the private limited company has been struck off w.e.f. 21.02.2019. The proprietary firm is administered by the Proprietor Mr.Shailesh Patel. All family members of Mr.Patel are the directors in the private limited company and hence, the present application with the following prayers:-
“(a) Your Lordships may be pleased to admit and allow the present application of the applicant.
(b) Your Lordship may be pleased to permit the applicant to withdraw a sum of Rs. 17,37,705/- along with interest deposited by the opponent in the Hon’ble Court pursuance to order dated 19.10.2019 of this Hon’ble Court in the name of Vemang Engineers; and/or;
(c) The Hon’ble Court may direct the Registry to issue cheque of Principal amount along with interest in the name of “Vemang Engineers” instead of “Vemang Engineers Pvt. Ltd. as directed vide order dated 3.3.2020;
(d) Any other and further order as may be deemed fit and expedient by this Hon’ble Court may be passed.”
4. We have heard learned advocate Mr. Mihir Pathak appearing for the applicant and learned advocate appearing for Gandhi Law Associates.
5. We noticed the additional affidavit of the applicant Mr. Shailesh Patel – Director of Vemag Engineers Private Limited and Proprietor of Vemag Engineers which has reiterated the details provided in the application. According to him, company’s directors being Mr. Shailesh Vasantbhai Patel, Mrs. Nitaben Shaileshbhai Patel and Mrs. Veenaben Vasantbhai Patel assembled as valid quorum on 14.06.2018 and passed a resolution to receive the money in relation to the legal disputes with Ms. N.K. Industries Limited. Again, pursuant to the closure application of the company filed before the Registrar of Companies, the company’s name strike off on 21.02.2019. The appellant has preferred appeal in April, 2019 and circulated on 19.10.2019.
5.1. It is therefore his say that the company shall be deemed to be alive for the purpose of realizing the amount due to the company. The company therefore would be entitled to recover the amount lying with the Registry even though it was strike off on 21.02.2019.
6. We have taken note of the notice issued in relation to the Extraordinary General Meeting of the
