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2004 Supreme(All) 188
HIGH COURT OF ALLAHABAD
S.P.MEHROTRA
Official Liquidator, Court, Allahabad
Versus
Vinay Bagla
Company Petn 62 of 1997
Decided On : 03 February 2004
Company Petn 62 Of 1997
A.N.SINHA, Anurag Khanna, ARNAB BHARTI SAPRU, BANERJI, J.NAGAR, MURALIDHAR RAO, Navin Sinha, Seema Shukla, V.B.SINGH, Vipin Sinha,
The main legal point established is that the court, by which the winding up order is made, has jurisdiction to entertain and dispose of proceedings under Sections 82 and 83 of the Code of Criminal Procedure, 1973, and to compel the appearance of the accused.
Headnote:
Official Liquidator - Application under sections 82 and 83 of the Code of Criminal procedure, 1973 read with Section 454 (5a)of the Companies Act, 1956 - Sections 446, 454, 82, 83 of the Companies Act, 1956 and Code of Criminal Procedure, 1973 discussed
Fact of the Case:
The Official Liquidator filed an application seeking to take cognizance of the offence committed by Vinay Bagla under Section 454 (5) and (5a) of the Companies Act, 1956, and for attachment of his property, as he failed to comply with the court's summons and warrants.
Finding of the Court:
The court found that it had jurisdiction to entertain and dispose of the proceedings under Sections 82 and 83 of the Code of Criminal Procedure, 1973, and to compel the appearance of Vinay Bagla.
Issues: The main issue was whether the court had the jurisdiction to take proceedings under Sections 82 and 83 of the Code of Criminal Procedure, 1973 to compel the appearance of Vinay Bagla.
Ratio Decidendi: The court held that under Sections 446, 454, 82, and 83 of the Companies Act, 1956 and Code of Criminal Procedure, 1973, it had the jurisdiction to entertain and dispose of the proceedings and compel the appearance of the accused.
Final Decision: The court directed for the publication of a proclamation requiring Vinay Bagla to appear before the court, and the case was listed for further proceedings.
( 2 ) AN Affidavit, sworn by Shri S. K. Saxena, Official Liquidator on 5-11-2003, has been filed in support of the aforesaid application.
( 3 ) IT is, interalia, stated in the said affidavit that the company, namely, M/s. Viniyoga Clothex Limited (in liquidation) was ordered to be wound up by the order dated 24-4-1998 on the recommendation of the board for Industrial and Financial Reconstruction (BIFR); and that complaint was filed by the Official Liquidator for non-filing of the Statement of Affairs by the opposite party as provided under Section 454 of the companies Act, 1956; and that upon the said complaint, this Court took cognizance of the offence and issued summons to the opposite party for compliance and filing of the Statement of Affairs of the company; and that the said summons were returned as unserved; and that thereafter, this Court issued bailable warrant compelling appearance of the opposite party; and that as the opposite party did not turn up, non-bailable warrant was issued by this Court, which was later returned as unserved with an endorsement "absconding" by the Chief Metropolitan Magistrate, New Delhi; and that in the circumstances, the aforesaid application has been filed seeking the directions mentioned above.
( 4 ) I have heard Shri Arnab Banerji, learned counsel for the Official Liquidator in support of the aforesaid application.
( 5 ) IT is submitted by Shri Banerji that in view of the provisions of S. 454 (5a)read with S. 446 (2) of the Companies act, 1956, the proceedings under S. 82 and s. 33 of the Code of Criminal Procedure, 1973 may be taken by this Court. Reliance in this regard has been placed on the following decisions :
1. In re Khosla Fans (India) P. Ltd. , (inliquidation), (1983) 53 Comp Cas 858 : (1981 tax LR 244) (Punj and Har ). 2. B. L. Sharma v. Om Prakash Malhotra, (1979) 49 Comp Cas 402 : (1979 Tax LR (NOC) 8) (Delhi)
( 6 ) IT is further submitted by Shri banerjee that in view of the facts and circumstances as stated in the affidavit accompanying the aforesaid application, it is in the interest of justice that the prayers made in the aforesaid application be granted.
( 7 ) I have considered the submissions made by Shri Banerji, learned counsel for the Official Liquidator, and perused the record.
( 8 ) THE first question which arises is as to whether this Court can take proceedings under Sections 82 and 83 of the Code of criminal Procedure, 1973 in order to compel the appearance of Vinay Bagla (opposite party ).
( 9 ) IN this connection, it is pertinent to refer to the relevant provisions of the Companies Act, 1956 and Code of Criminal Procedure, 1973.
( 10 ) SECTION 446 of the Companies Act, 1956 provides as follows :
"446. (1) When a winding up order has been made or the Official Liquidator has been appointed as provisional liquidator, no suit or other legal proceeding shall be commenced, or if pending at the date of the winding up order, shall be proceeded with, against the company, except by leave of the Court and subject to such terms as the court may impose. [ (2) The Court which is winding up the company shall, notwithstanding anything contained in any other law for the time being in force, have jurisdiction to entertain, or dispose of (a) any suit or proceeding by or against the company; (b) any claim made by or against the company (including claims by or against any of its branches in India); (c) any application made under Sectio
