TMI Blog2004 (9) TMI 394X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. While that is the present status of the winding up proceedings, these CAs are filed which primarily relate to transfer of certain cases and execution proceedings pending before the Consumer Disputes Redressal Forum, Ghaziabad and New Delhi under the Consumer Protection Act, 1986 to this Court. All these applications are filed by ex-Directors of the Company (in provisional liquidation). Details of these proceedings may be noted at this stage. CA Nos. 72 73/2003 : 3. Two persons, namely, Smt. Saroj Jain and Mr. Raj Kumar Jain had filed Case No. 3164 of 2000 titled Saroj Jain v. Dawsons Leasing Finance Co. Ltd. before the District Consumer Disputes Redressal Forum-II, New Delhi. Claim of these two persons was that they were poor investors who had invested in the fixed deposit scheme of the company and were not paid even a single penny on maturity of said deposits. The claim was, therefore, for refund of these deposits with interest. This claim was allowed by the District Consumer Disputes Redressal Forum vide ex parte order dated 10th July, 2001. Thereafter these complainants filed execution of the order dated 10th July, 2001 being Execution application No. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Singhal v. Dawsons Leasing Ltd. Here the District Consumer Forum, Ghaziabad passed ex parte order dated 11th October, 2000. The company had filed application for setting aside the said order which was dismissed. Thereafter, execution proceedings are filed which are pending before the said Forum. Second case relates to complaint No. 633 of 1999 titled as B.K. Mandal v. Dawsons Leasing Ltd. Here the District Consumer Forum, Ghaziabad passed ex parte order dated 4th April, 2001. The company had filed application for setting aside the said order which was dismissed. Thereafter, execution proceedings are filed and in these execution proceedings, warrants of arrest have been issued against ex-Directors. On identical submissions, prayer is made in this application also that in view of provisions of sections 442 and 446 of the Act, these proceedings be also transferred to this Court. Third case relates to complaint No. 245 of 2000 titled as B.K. Mandal v. Dawsons Leasing Ltd. Here the District Consumer Forum, Ghaziabad passed ex parte order dated 12th October, 2000. The company had filed application for setting aside the said order which was dismissed. Thereafter, exe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f : "445. Copy of winding up order to be filed with Registrar. (1) and (2)****** (3) Such order shall be deemed to be notice of discharge to the officers and employees of the company, except when the business of the company is continued. 446. Suits stayed on winding up order. (1) When a winding up order has been made or the Official Liquidator has been appointed as provisional liquidator, no suit or other legal proceeding shall be commenced, or if pending at the date of the winding up order, shall be proceeded with, against the company, except by leave of [Tribunal] and subject to such terms as the [Tribunal] may impose." 10. The aforesaid provisions are interpreted in various judgments, notable among them would be the judgment of the Supreme Court in the case of National Transports General Co. (P.) Ltd. (in liquidation) Re. [1990] 69 Comp. Cas. 791. The principle laid down in the aforesaid judgment is that when a winding up order is passed, it puts an end to the powers of the Directors of making calls and it operates as discharge of all officers of the company including Directors and the employees under section 445(3). In law, a company which is ordered by the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no applicability in the matter as it was not decided with reference to section 446 of the Companies Act." 12. In order to examine this contention, we will have to first peruse section 27 of the CP Act to understand the nature of proceedings therein. Section 27 is couched in the following language : "27 Penalties. Where a trader or a person against whom a complaint is made [or the complainant] fails or omits to comply with any order made by the District Forum, the State Commission or the National Commission, as the case may be, such trader or person [or complainant] shall be punishable with imprisonment for a term which shall not be less than one month but which may extend to three years, or with fine which shall not be less than two thousand rupees but which may extend to ten thousand rupees, or with both : Provided that the District Forum, the State Commission or the National Commission, as the case may be, may, if it is satisfied that the circumstances of any case so require, impose a sentence of imprisonment or fine, or both, for a term lesser than the minimum term and the amount lesser than the minimum amount, specified in this section." 13. It is clear from th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed against the Directors under section 27 of the CP Act. Therefore, it cannot be said that the ex-Directors of the company committed any such act in relation to the proceedings under the CP Act which is personally attributable to them. To put it differently, proceedings under section 27 of the CP Act would be in relation to the assets of the company. 14. It may be added here that in the present case that the applicants have also stated that payment could not be made to the respondent as the Original Side of this Court in Suit No. 840/99 passed restraint order dated 20th April, 1999 freezing the accounts of the company. 15. The result of the aforesaid discussion would be that the proceedings under section 27 of the CP Act in the instant case shall be covered by section 446 of the Act and, therefore, such proceedings cannot continue except with leave of this Court. It would be appropriate to transfer execution proceedings filed under section 27 of the CP Act, to this Court. These execution proceedings, particulars whereof have already been noted above, shall stand transferred to this Court. The registry may send request to the District Forum-II, New Delhi as well Ghaziaba ..... X X X X Extracts X X X X X X X X Extracts X X X X
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