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2022 (8) TMI 871 - HC - Indian LawsDishonor of Cheque - discharge of legally enforceable debt - leave of the Court under section 446 of the Companies Act - whether the impleadment of Official Liquidator is necessary in a complaint for the offence punishable under section 138 of the Act, 1881, where it is alleged that the company in liquidation has committed the said offence? - HELD THAT:- In the facts of the case, if the submission on behalf of the applicants is readily acceded to, then M/s. Rangara would get a long leash to avoid the liability by taking undue advantage of its own default. M/s. Rangara, it can be fairly assumed, entered into consent terms in the Company Petition to wriggle out of the consequences which would have otherwise ensued in the Company Petition. M/s. Rangara committed default in compliance with the undertakings in the consent terms. Undoubtedly the consent terms provided for the consequence of the winding up petition being allowed in the event of any default. But that stipulation appears to be in the nature of a dyke against the default. In such a situation, to accede to the submission on behalf of the applicants, would amount to playing into the hands of a party who succeeds in avoiding the liability under the original proceedings as well as the one incurred under the consent terms. In a case of this nature, a distinction is necessarily required to be made between a winding up order passed after weighing of all the options, especially after recording satisfaction under sub section (2) of section 440 of the Companies Act, 1956 and an order of winding-up, which is invited, by executing consent terms. It is trite, an order of winding-up on merits manifests a judicial exercise upon recording a satisfaction that having regard to the interest of the creditors or contributors or both, winding-up is imperative. In all the complaints, the process was issued in the year 2016-17. Trial has commenced. Two of the complaints are at the stage of recording the cross examination of the complainant’s witnesses. At this juncture and in the light of the facts which have emerged, inherent jurisdiction to indict the complaints need not be exercised - application dismissed.
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