Delhi High Court
Sh. Giriraj Ratan Daga & Ors vs Ganga Yamuna Finvest Private Ltd on 16 October, 2017
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 09th October, 2017
Pronounced on: 16th October, 2017
+ CO.PET. 42/2009 & CA Nos.2584/2016, 1619/2017 & OLR
No.20/2016
SH. GIRIRAJ RATAN DAGA & ORS.
..... Petitioner
Through : Mr.Suman Kumar, AR of SMC
Global Securities Ltd applicant in
CA No.2208/2016.
versus
GANGA YAMUNA FINVEST PRIVATE LTD
..... Respondent
Through : Mr.Vibhor Garg and Ms.Puja
Agarwal, Advocates for ex-
directors of company in
liquidation.
Ms.Sangeeta Chandra, Advocate
for Official Liquidator.
CORAM:
HON'BLE MR. JUSTICE YOGESH KHANNA
YOGESH KHANNA, J.
CA No.2208/2016
1. The applicant herein being a creditor of the respondent
company in liquidation has filed this application for stay of the
winding up proceedings alleging inter alia that winding up order(s)
were procured by the petitioners in collusion with the respondent
company and its ex-directors.
2. It is alleged the petitioners are relatives of the ex-directors of
the respondent company and have filed this petition on the
allegations that the company owe an amount of `22.63 Lac to them
which the company could not pay. It is alleged the statutory notice
was sent to the company on 12.01.2009 but strangely was served
personally to the managing director on the very next day i.e.,
13.01.2009. Since the payments were not made deliberately and
no reply to the statutory notice was sent; this company petition was
filed by the petitioners. Though the advocate for the respondent
company appeared and sought time for filing the reply to the
company petition but it was never filed and accordingly on
06.09.2010 the provisional liquidator was appointed, in the
presence of the learned counsel for the applicant herein. Since
there was no chance of revival, the respondent company was
ordered to be wound up finally and the provisional liquidator was
appointed as the liquidator of the company.
3. It is alleged the applicant rendered the clearing services to
various stock brokers in India and takes guarantee to make the
payment for the entire transactions of the brokers, trading members
and their constituents on daily basis in derivative segments of
National Stock Exchange of India Limited (hereinafter referred to
as 'NSEIL'). The respondent approached the applicant for clearing
services and both of them had entered into a Clearing Member -
cum - Trading Member Agreement on 14.08.2007 and in pursuant
thereof the applicant as a clearing member made the payments to
NSEIL approximately of `18.7 Crore on behalf of the respondent
company and its constituents /clients and also paid all the statutory
charges related therewith.
4. It is alleged that the business continued till November, 2008
and the amount due to the applicant as on 28.11.2008 was
`6,65,27,194.76. The applicant alleges that on the one hand the
respondent company kept on promising to clear its debt, but on the
other hand got this company petition filed through the relatives of
its ex-directors. The respondent company had issued cheques
worth `8,95,05,000/- in favour of the applicant during the period
from 11.01.2008 to 15.05.2008 and cheques of `2.50 Crore were
dishonoured. The respondent No.4 herein i.e. ex directors of the
respondent company in liquidation gave personal properties as
collateral. However, it is an admitted case that due to bad stock
market conditions, the respondent company suffered losses and
though it paid money to the applicant even by selling personal
assets of its directors, but since the position of the share market did
not improve the respondent company went in losses.
5. The matter was taken to the arbitral tribunal of NSEIL,
which on 31.01.2010 gave an award to the tune of `6,34,26,088/-
in favour of the applicant and against the respondent company.
Admittedly, the applicant had filed criminal complaint cases under
Section 138 of the Negotiable Instruments Act, 1881 against the
respondent company for dishonored cheques which are pending.
6. It is also alleged the respondent company had filed false
ledgers / balance sheets before different authorities viz before the
High Court; Registrar of Companies; in Criminal Complaint cases,
hence action be taken against the respondent company and the
winding up proceedings be stayed.
7. However, admittedly in criminal complaint case bearing
No.40/01/2016 filed on the same grounds viz falsification of
account/balance sheets, the learned Metropolitan Magistrate - 03,
Central, Delhi has noted as under:-
"6. I have heard the arguments and
perused the records. Complainant has
placed on record the email dt.01.07.2009,
ledger, as well as balance-sheet obtained
from the ROC records. It is prima-facie
clear that all the three account statement
shows different outstanding balance towards
the complainant company on 31.03.2008. It
is prima-facie clear from the records that
accounts statement are not clear from doubt
and are manipulated. However, I do not
agree with the submissions that the
ingredients of forgery by created false
documents under Section 464 IPC is made
out. It is f case where there are prima-facie
allegations that respondents in collusion
with each other have tried to cheat the
complainant by falsification of accounts and
the ingredient of Section 420 IPC r/w
Section 477(A) IPC are attracted."
8. Thus, the grievance of the applicant herein is duly taken care
of (a) by filing of criminal complaint No.40/1/2016 against the ex-
directors of respondent company; (b) by filing various complaints
under Section 138 of the NI Act; and (c) by obtaining an award
dated 31.05.2010 in its favour.
9. Further, admittedly on 06.09.2010 when the provisional
liquidator was appointed as also on 02.03.2012 when the
respondent company was directed to be finally wound up, the
applicant's counsel was very much present in the Court. The filing
of this application after five years of passing of such orders despite
having knowledge of the same would be nothing but an act of
frustration, hence, the application being highly belated is
dismissed. The applicant, even otherwise, is not devoid of remedy
and may file claim before the Official Liquidator and once the
claim is filed, the Official Liquidator to examine and verify the
claim of the applicant herein and to deal with as per law.
CO.PET. 42/2009 & CA Nos.2584/2016, 1619/2017 & OLR
No.20/2016
10. List on 19.03.2018.
YOGESH KHANNA, J
OCTOBER 16, 2017
M
