IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 02.07.2012

CORAM

The Honourable Mr. Justice P.JYOTHIMANI

and

The Honourable Mr. Justice M.DURAISWAMY

O.S.A.No.238 of 2012

M/s.Sri Krishna Constructions

rep. by its partner

C.Vamsi Krishna

..

Appellant/Petitioner

vs.

M/s.Tiffin's Barytes, Asbestos

and Pains Ltd., Chennai.

..

Respondent/Respondent

PRAYER: Appeal filed under Order XXXVI, Rule 11 of O.S. Rules, r/w.

Clause 15 of the Letters Patent against the judgment and order

dated 30.3.2012 made in C.A.No.1911 of 2010 in C.P.No.326 of 2010.

-----

For appellant :Mr.A.L.Somayaji,

Senior Counsel for

M/s.Narmadha Sampath

A.Saravanan and N. Gnaneshkumar

For respondent:Mr.G.R.Swaminathan for

Mr.R.Thiagarajan

-----

J U D G M E N T

[Judgment of the Court was made by P.JYOTHIMANI, J.]

Heard Mr.A.L.Somayaji, learned Senior Counsel for the

appellant and Mr.G.R.Swaminathan, learned counsel, who has taken

notice on behalf of the respondent.

2. The original Company Petition has been filed by the

appellant against the respondent Company for winding up on the

ground of inability to pay its debts, under Section 433[e] r/w.

Section 494[1][a] and 439[1][b] of the Companies Act, 1956.

Pending the said Company Petition, the appellant filed Company

https://hcservices.ecourts.gov.in/hcservices/

Application No.1911 of 2010, seeking an order of injunction in

respect of 'a' to 'e' schedule of immovable properties, from

creating any third party interest and also not to make any sale of

the movable properties, including minerals lying at the stockyard

of the mines of the Company in Karnataka and Andhra Pradesh.

3. Originally, by order dated 20.12.2010, an order of

injunction was granted in respect of all items of schedule 'a' to

'f' mentioned properties, and thereafter, by an order dated

7.1.2011, on an application filed by the respondent herein in

C.A.No.23 of 2011 to vacate the said order of injunction, the

injunction order was restricted only in respect of the other items,

except schedule 'c' and 'f'. Subsequently, when the matter came up

before the Company Court, the Company Court, by its order dated

14.3.2011, has vacated the order of injunction granted on

20.12.2010 on the ground that the Company Court has no jurisdiction

to pass an order of injunction since its jurisdiction under the

Companies Act is restricted only in respect of protecting the

interest of the creditors. It was against the said order,

O.S.A.No.164 of 2011 was preferred by the appellant and a Division

Bench of this Court, by judgment dated 28.10.2011, relying upon

Rule 9 of the Companies [Court] Rules, 1959 has categorically held

that the Company Court, in addition to its jurisdiction to decide

about the creditors' interest, etc., has inherent powers to pass

any other interim order or direction, which included grant of

interim injunction. Ultimately, the Division Bench, taking note of

the fact that the learned single Judge has vacated the order of

injunction without assigning any reason and also on the basis that

it is not correct to hold that the Company Court has no inherent

powers especially to grant injunction, while setting aside the said

order passed by the learned Judge, has restored the earlier order

of injunction and directed the learned Company Court Judge to

decide the matter afresh by remitting the same. The operative

portion of the judgment reads as under:

"10.In the above said circumstances, without

assigning any reasons, the learned Single Judge has

vacated the order dated 20.12.2010 which is not

sustainable in law. Further more, it is pertinent to note

here that the order dated 20.12.2010 has been modified on

7.1.2011 after hearing both sides. But, that order has

not been challenged by either parties.

In such

circumstances, we are of the view that the order pa