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TMI Blog2010 (3) TMI 668X X X X Extracts X X X X X X X X Extracts X X X X ..... pious wish to run the business of the company (in liquidation) and obtained an interim order on 2-7-2008. The order stayed the winding up of the company for a period of six months. Paragraph 4.2 of the order referred to a solitary applicant and recognized such solitary applicant to be an ex-worker and a contributory holding "35 per cent share" in the company (in liquidation). The order of 2-7-2008 also recorded as follows : "The ex-workers and the applicants have found a strategic partner in the applicant No. 6 who is ready and willing to invest sums for revival of the said company. From the viability report of the chartered accountant, the customers of the company (in liquidation), are prestigious organization and, in the event, such cus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 577 of 2004 was obviously the petition on which the order of winding up was made on 8-3-2006. Upon an order of winding up being made, subsequent applications relating to the company (in liquidation) may be taken out at any stage subject to their permissibility under the Act and the Rules, but all such subsequent applications need to bear the number of the petition on which the company was directed to be wound up. An application under section 466 of the Companies Act, as every beginner at a company law class is aware, has to proceed by accepting the order of winding up and without questioning it. An application under section 466 is generally made with an application number and is tied to the company petition number on which the order of wind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct rooted to C.P. No. 577 of 2004. But to forget the procedure and to return to the merits-if there be any-of the matter. 8. In neither C.A. No. 383 of 2007 nor C.P. No. 253 of 2009 have the applicants (or the petitioners) sought to demonstrate or obtain the support of all classes of persons whose support is indispensable for even the wild dream of the workmen running the business of the company (in liquidation) to come true. First, the contributories of a company (in liquidation), who are its erstwhile shareholders, had to approve of a scheme; secondly, the secured creditors in whose favour the assets may have been mortgaged or otherwise charged would have had to consent whether unanimously or to the extent of the statutory threshold; and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l of a company or its books or records nor be able to assert the extent of indebtedness of a company or make any admission in such regard on behalf of the company. Nothing that these wishful petitioners can say would bind the company (in liquidation) or help the Court assess the quantum of indebtedness of the company (in liquidation) to its secured or its unsecured creditors. 12. The second petitioner claims to be the holder of 36 per cent shares in the company. To start with, this is a false impression that is given by the second petitioner. Upon a company going into liquidation, its shares are not transferable and the transfers are void unless specific approval in such regard is obtained from the Court presiding over its winding up. Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the unsecured creditors. No attempt was made by the applicants in C.A. No. 383 of 2007 or the petitioners in C.P. No. 253 of 2009 to obtain the prior approval of the secured creditor, if there be only one, before proceeding to convene a meeting of the unsecured creditors. That an advertisement was published to which the secured creditor did not respond, will not amount to a waiver of the secured creditor's rights. 15. The petitioners in C.P. No. 253 of 2009 submit that the workmen would be entitled to stand on the same footing as the secured creditor and to the extent the quantum of the workmen's dues are well in excess of the quantum of the secured creditors' dues, the workmen's wishes should hold sway. This is an argument in theory ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the secured creditor of the company that it is not willing to support the scheme unless paid a substantial amount affront, the inability of the petitioners in C.P. No. 253 of 2009 to put such money on the table immediately and the pulling out of the frontman that the applicants in C.A. No. 383 of 2007 had brought-would all result in both C.A. No. 383 of 2007 and C.P. No. 253 of 2009 being dismissed. 18. The committee of management under the special officer appointed by the order dated 2-7-2008 will continue only for the purpose of guarding the assets of the company (in liquidation) till such time that the Official Liquidator takes possession thereof. The special officer heading the committee of management will forthwith call upon the Offi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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