Krishna Texport Indus Ltd vs Dcm Ltd
2012 Latest Caselaw 6104 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI


%                           Date of Judgment:10.10.2012


+      CO.PET. 11/1999
       KRISHNA TEXPORT INDUS LTD.                ..... Petitioner
                         Through Ms. Suruchi Aggarwal, Adv.
                  versus
       DCM LTD.                             ..... Respondent
                         Through Mr. Kirat Singh Nagra and
                                 Mr.Tanuj Bhushan, Adv.

       CORAM:
       HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J. (Oral)

Co.Appl. No.1933/2012 (Exemption) in Co. Pet. 11/1999

Exemption allowed subject to all just exceptions.

Co.Appl. Nos.1931/2012 ( Review petition under Order XLVII of the Code of Civil Procedure seeking review of the order dated 13.09.2012) and 1932/2012 (Under Section 151 read with Rule 9 of the Companies Act for recall of order dated 13.09.2012) in Co. Pet. 11/1999

These two applications seek a review and recall of order dated

13.09.2012; submission being that the parties were in fact negotiating

possibility of a settlement and this has been recorded by an order of the

Division Bench on 19.10.2005 as also a subsequent order dated

22.05.2006; in this scenario, the impugned order holding that the

winding up petition is not maintainable suffers from a material

irregularity which entitles the petitioner to a review and recall of the

order dated 13.09.2012. The orders of the Division Bench relied upon by

the learned counsel for the petitioner dated 19.10.2005 & 22.05.2006

have been perused. It is not in dispute that a suit for declaration has been

filed by the respondent seeking a declaration to the effect that a sum of

Rs.4.10 crores has been paid to the petitioner in full and final settlement

of his claim. In fact in the impugned order, the Court had noted that on

the earlier date i.e. on 31.08.2012, the petitioner had taken time to take

instructions as to whether she wishes to pursue this winding up petition

or not.

Parameters of review are contained in Order XLVII of the Code

of the Civil Procedure (hereinafter referred to as the Code). Unless and

until there is a glaring mistake or error apparent on the face of the record

or some evidence has crept in which even after exercise of due diligence

was not within the knowledge of the appellant at the time when the

impugned order was passed, a ground for review is not made out. None

of the averments now made before this Court fit into the parameters of

Order XLVII of the Code.

An oral submission has been made that on the date when the

impugned order has been passed, counsel for the petitioner was not

available for the reason that her nephew was hospitalized. This does not

find mention in the aforenoted two applications.

The impugned order has noted that when there are disputed

questions of facts for which the evidence and trial is required, a winding

up petition is not maintainable.

No ground for review. Dismissed.

INDERMEET KAUR, J OCTOBER 10, 2012 A