TMI Blog2008 (8) TMI 563X X X X Extracts X X X X X X X X Extracts X X X X ..... AND AFTAB ALAM, JJ. Rajesh Srivastava for the Appellant. Mandeep Singh Vinaik, Ms. Vandana Sehgal, Rohan Thawani, Hardeep Singh Anand and P.N. Puri for the Respondent. JUDGMENT Aftab Alam, J. - This appeal is directed against the orders passed by the Punjab and Haryana High Court asking the appellant to deposit in court the sum of Rs. one crore that it had received in connection with the sale of the property of M/s. Pure Drinks (New Delhi) Ltd. (respondent No. 2), for the liquidation of which a proceeding remains pending in the High Court. The first order in this regard was passed by a learned Single Judge on 14-3-2000 on an application made by Neel Kamal Plastics Ltd. (respondent No. 1), one of the several creditors of the second respondent, M/s. Pure Drinks (New Delhi) Ltd. (hereinafter referred to as the Debtor Company ). By this order the appellant was directed to deposit the aforesaid amount in twelve equal monthly instalments of Rs. 8.5 lakh beginning 15-4-2000. Against the order passed by the learned Single Judge, the appellant preferred an appeal before the Division Bench of the Court under section 483 read with section 466 of the Companies Act, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompany then brought the matter to this Court in SLP No. 1032 of 1999. The SLP was dismissed as withdrawn by order dated 3-2-1998. 5. While the matter in the Punjab and Haryana High Court rested at this stage, in another proceeding instituted before the Debts Recovery Tribunal, Delhi at the instance of Punjab and Sind Bank the Debtor Company was able to sell its property A-30, Mohan Co-operative Industrial Estate, Mathura Road, New Delhi to one Motor and General Finance Ltd. (hereinafter referred to as MGF Ltd.) on certain terms as to the disbursement of the sale proceeds as directed by the DRT. The sale of the property by the Debtor Company was objected to by some interested persons and the matter went to the Delhi High Court and in due course the Company Petition pending before the Punjab and Haryana High Court and the orders restraining the Debtor Company from alienating any of its properties also came to light. 6. In yet another suit instituted before the Delhi High Court Pure Drinks (Calcutta) Ltd.,[Civil Suit No. 2311 of 1993], a sister concern of the Debtor Company sold its property A-31, Mohan Co-operative Industrial Estate, New Delhi to the common vendor MGF Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dy been passed for winding up of the Respondent but it was deferred for final publication. This court had stayed the sale of property including No. A-30, Mohan Co-operative Industrial Estate, Mathura Road, New Delhi. It appears that despite the said order the property had been sold and the sale had since been confirmed by Delhi High Court. M/s. Motor and General Finance is the purchaser of the property. Out of the total sale proceeds from A-31, Mohan Co-operative Industrial Estate, Mathura Road, New Delhi, two post dated cheques of Rs. one crore dated 3-9-1999 (No. 719854) and the other dated 2-11-1999 for Rs. 95 lacs (No. 719855) has been handed over to the applicant s counsel in Court. The applicant s counsel has accepted the said cheques without prejudice to its contentions against M/s. Pure Drinks Limited, New Delhi-Respondent. Keeping in view the abovesaid fact and the events referred to above that the sale has been confirmed by the Delhi High Court and that the parties namely the applicant, M/s. Motor General Finance Ltd. and the Respondent have no objection, it is directed that the stay that had been granted against the Respondent would stand vacated as against the above ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... By this order the Company Judge directed that the appellant would encash the cheque of Rs. 95 lakhs only on the condition that the money would be immediately deposited in the Delhi High Court. (The other cheque of Rs. 1 crore had already been encashed by then). The Court also issued notice to the parties in Company Petition No. 16 of 1997 and MGF Ltd. to show cause why order dated 1-9-1999, lifting the earlier restraint order, be not recalled; parties were permitted to file supplementary replies. As an interim measure MGF Ltd. was restrained from selling, alienating or creating any charge on A-30 Mohan Co-operative Industrial Estate, Mathura Road, New Delhi. The order dated 26-10-1999 makes it clear that the Punjab Haryana High Court, on being apprised of all the facts, took the view that the order dated 1-9-1999 was obtained from it on a complete misrepresentation of the orders passed by the Delhi High Court. On 14-3-2000 the Company Judge passed the final order in the matter. The relevant extract from the order is as follows : "As regards the rest of the amount of Rs. One crore, it is abundantly clear from reproduced paragraph above that when Company Application 441 of 1999 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ab Haryana High Court. Further, the amount that was paid to the appellant was a part of the consideration money that MGF Ltd. was to pay to M/s. Pure Drinks (Calcutta) Ltd. which too was not a party before the Punjab Haryana High Court. Thus, the whole transaction had taken place outside the purview of proceedings before the Punjab and Haryana High Court. It was, therefore, not open to the High Court to ask the appellant to deposit in Court the money received by it from MGF Ltd. Learned counsel next submitted that in any event such a direction could not be made on an application by respondent No. 1 because M/s. Neelkamal Plastics Ltd. had received over Rs. 13 lakhs from the Debtor Company and it was thus itself extended a fraudulent preference by the Debtor Company. 13. We see no substance or merit in either of the two submissions. The submissions made by Mr. Srivastava tend to present the matter in an over simplified way and completely overlook the provisions of the Companies Act. It is misconceived and fallacious to suggest that the appellant received a sum of Rs. 1.95 crores from MGF Ltd. in a transaction falling outside the purview of the Company Petition pending before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e kind. But the submission does not even appear to be factually correct. In the order coming under appeal the High Court dealt with the point and made the following observation : "The argument of Shri Ranjit Kumar that Respondent No. 1 could not have questioned the payment made by M/s. MGF Ltd. to the appellant because it had received Rs. 13.20 lakhs from Respondent No. 2 after filing of winding up petition sounds attractive but does not merit acceptance because perusal of the record shows that Respondent No. 1 had received payment from Respondent No. 1 ( sic Respondent No. 2) between November 1998 and 19-7-1999 amounting to Rs. 10,95,000 (last cheque dated 11-8-1989) of Rs. 2,25,000 was not encashed by Respondent No. 1 before the passing of the second order of advertisement. We are further of the view that the acceptance of payment of Respondent No. 1 from Respondent No. 2 is not sufficient to preclude it from bringing to the notice of the learned Company Judge that order dated 1-9-1999 had been obtained by the parties by suppressing material facts and playing fraud with the Court." 17. This is the complete answer to the submission made on behalf of the appellant. 18. W ..... X X X X Extracts X X X X X X X X Extracts X X X X
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