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2014 (2) TMI 1014 - HC - Companies LawApplication for setting aside the Winding up order - Misappropriation of funds - Applicant was in custody while misappropriation done - Held that:- The applicant claims himself to be one of the founder directors of the company and its single largest shareholder. If these claims are correct, it was expected of the applicant to be more diligent than what he has been. He was no doubt not made a respondent in the company petition. But there were 7 other directors who were made respondents and they also did not take part in the winding-up proceedings after 02.08.2004. It is difficult to believe that there was lack of communication between the other directors and the applicant and that the applicant was not made aware of the winding-up proceedings. It would have been quite natural for the directors who were respondents in the company petition to have informed the founder director/ single largest shareholder of the company that winding-up proceedings have been instituted against the company. There appears to have been no impediment in the way of the applicant in those 4-5 months. The applicant, in my view, could not have been unaware of the company petition or the proceedings in connection therewith before this Court prior to his being taken into custody in March, 2005; he could have, therefore, taken steps, to oppose the winding-up proceedings. In any case the publication of the citation in the English newspaper “The Statesman” was made before 12.10.2004 as recorded by this Court in its order passed on 22.03.2005. At that time the applicant was not in custody and, therefore, his claim that he could not have access to newspapers published in Delhi while he was in custody in Lucknow does not hold water. The company was represented before this Court in the winding-up proceedings and up to 02.08.2004 counsel had appeared for the company. It was only thereafter that there was no representation on behalf of the company. The order of provisional winding-up and appointment of provisional liquidator was passed in the present case on 12.10.2004 on which date the applicant was a free person. The publication in the English newspaper i.e. the Statesman was made and a copy of the citation published in the said newspaper was filed in the Court by the OL, as noted by this Court in its order dated 22.03.2005. The applicant thus had ample opportunity to resist the winding-up proceedings. He could not have been unaware of the citation published in the English newspaper or of the order of provisional winging-up and appointment of the provisional liquidator. He was not in custody when these developments took place - diligence shown by the applicant after he was released on bail on 15.07.2007 cannot avail him - application rejected.
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