Ravi Kumar vs The Official Liquidator & Anr.
2014 Latest Caselaw 1994 Del

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*IN THE HIGH COURT OF DELHI AT NEW DELHI


                                  Date of decision: 22nd April, 2014


+                        CO.APP. 73/2013

RAVI KUMAR                                               ..... Appellant
                  Through         Mr. R.D. Makheeja, Advocate.


                         versus


THE OFFICIAL LIQUIDATOR & ANR.                ..... Respondent
              Through     Mr. Rajiv Bahl, Advocate for Official
              Liquidator.
              Mr. Navinder Nath Gautam and Ms. Anjali Rajput,
              Advocates for R-2.

CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE G.P. MITTAL


SANJIV KHANNA, J.

Ravi Kumar, Director of M/s Presidium Breweries Pvt. Ltd.

(Company, for short) has filed the present intra Court appeal

impugning orders dated 15th May, 2013 and 29th August, 2013 passed

in Company Petition No.306/2012 titled Paramvir Singh Vs. Presidium

Breweries Pvt. Ltd.

2. Order dated 15th May, 2013 records that earlier on 27th February,

2013, the Managing Director of the company had appeared in person

and was directed to file an affidavit stating and mentioning movable

and immovable assets and enclosing therewith balance sheets, profit

and loss accounts and statements of all bank accounts for the last three

years. The company was also restrained from creating any charge,

alienating, transferring or parting with possession of any of its movable

assets. Order dated 15th May, 2013 records that the said direction has

not been complied with and no one was present on the said date to

contest the proceedings. Accordingly, the company petition was

admitted and the Official Liquidator was appointed as Provisional

Liquidator with a direction to take over all assets, books of accounts

and records. Citations were directed to be published and directors of

the company were asked to ensure strict compliance of Section 454 of

the Companies Act, 1956 (Act, for short) and Rule 130 of the

Companies (Court) Rules, 1959. Statement of affairs in the prescribed

form was required to be filed within 21 days.

3. On or about 17th June, 2013, the company filed Company

Application No.1053/2013 seeking recall of the order dated 15th May,

2013. In this application, the company contested the winding up claim

under Section 433(1)(e) of the Act on merits and had also given the

reason why no one was present on behalf of the company when the

matter was taken up for hearing on 15th May, 2013. It was stated that

the Director of the company was to appear before the Court and ask for

some time on 15th May, 2013 to comply with the earlier directions.

However, on 14th May, 2013, the said Director had gone to Mohali

with an intention to come back and make appearance. On his return

journey from Mohali to Delhi, his car broke down and he could not

reach the Court in time. At about 2.25 p.m. on 15 th May, 2013, when

he came to the Court after procuring entry pass, he was informed that

the matter had been adjourned to 8th October, 2013. He subsequently

read the order dated 15th May, 2013 on the internet and came to know

about the winding up order. Before summer vacations, the company

had filed an application for recall of the order of the winding up dated

15th May, 2013 vide diary number indicated in paragraph 18, but the

said application could not be listed due to office objection and pre

vacation rush in the Registry.

4. Initially notice on the said application was issued vide order

dated 19th June, 2013 and was renotified vide order dated 5th July, 2013

to 12th August, 2013 and then to 29th August, 2013. On the last date

i.e. 29th August, 2013, the application was dismissed primarily on the

ground that the Company Court on 17th February, 2013 had directed

the Managing Director of the company to file reply as well as an

affidavit indicating the movable and immovable assets along with

balance sheets, profit and loss accounts and bank statements for the last

three years. The said details and the reply were not filed till order

dated 15th May, 2013 was passed. It is noticeable that the order dated

29th August, 2013 does not refer to the merits or the contentions raised

by the company in respect of the monetary claim, which was

elucidated and mentioned in the application. This aspect or merits are

being elucidated below.

5. The company in Company Application No.1053/2013 accepts

and admits that they had received Rs.10,00,000/- by way of two

cheques from the respondent, i.e. the petitioner, before the Company

Court. They, however, dispute payment of Rs.20,00,000/- alleged to

have been made in cash by the respondent. It is also claimed that the

company had made payment of Rs.3,79,500/- by way of bearer

cheques to the respondent at his request. However, along with the

application, no details or receipt issued by the respondent towards

payment, have been enclosed. It is further claimed that the director of

the company had made cash payment of Rs.6,00,000/- approximately,

but again no receipt or proof of payment has been enclosed. The

company has admitted that they had issued three cheques of

Rs.5,00,000/- each, which were presented for encashment, but were

dishonoured and criminal case under Section 138 of Negotiable

Instruments Act has been filed.

6. It is stated that the company is engaged in the business of selling

of liquor in Punjab and Haryana. The said liquor was got

manufactured by the company under their own brand name, which is

registered with the government. Learned counsel for the appellant

submits that an affidavit setting out assets both movable and

immovable has been filed along with profit and loss account, balance

sheet etc. Learned counsel appearing for the Official Liquidator

accepts the said factual position. It is also accepted that balance sheets

etc. have been filed, but the contents thereof are under dispute by the

respondent i.e. the petitioner before the Company Court. However,

there were lapses and defaults by the company. Keeping in view the

aforesaid facts, we issue the following directions:-

(i) The company or the appellant will deposit in the Court

Rs.9,00,000/- within a period of 30 days. This amount may be released

to the respondent i.e. the petitioner, subject to conditions as may be

imposed by the Company Court. We have directed payment of

Rs.9,00,000/- as the respondent in the company petition has accepted

that he had received payment of Rs.1,00,000/- by cheque.

(ii) The company court will examine the contention and claim of the

respondent that he had made payment of Rs.20,00,000/- in cash and the

claim and contention of the company to the contrary. The Company

Court will also examine the claim and contention of the appellant about

payment of Rs.3,79,500/- by bearer cheques and Rs.6,00,000/- in cash,

of which no receipt or document has been filed.

(iii) The company and the appellant are restrained from creating any charge, alienating, transferring or parting with possession of any of the immovable assets of the company. However, they will continue to operate and carry on business, but will file statement of accounts relating to income, receipts as well expenditure, copy of which will be furnished every fortnight to the respondent and the Official Liquidator. The said order/direction is subject to order/direction/modification by the Company Court.

(iv) The orders dated 15th May, 2013 and 29th August, 2013 are partly modified to the extent indicated above. We clarify that direction for admission and appointment of Official Liquidator as Provisional Liquidator is set aside for the present. However, the Company Court in case of failure to deposit Rs.9,00,000/- or comply with the directions made above or any order/direction by the Company Court can admit the petition and appoint the Official Liquidator as Provisional Liquidator in accordance with law.

7. The company appeal is disposed of.

8. The matter will be listed before the Company Court on 27th May,

2014 for adjudication and compliance of the condition.

SANJIV KHANNA, J.

G.P. MITTAL, J.

APRIL 22, 2014 NA