TMI Blog2010 (4) TMI 604X X X X Extracts X X X X X X X X Extracts X X X X ..... o all the creditors. Keeping in view the object of section 446 of the Companies Act, 1956, it is to be held that the order obtained by respondents Nos. 1 to 4 by filing E. A. No. 106 of 2007 from the District Consumer Disputes Redressal Forum-II, Hyderabad, cannot be sustained. Thus both these company applications are allowed quashing the proceedings in E. A. No. 106 of 2007 and consequently, ■ attachment order passed by the District Consumer Disputes Redressal Forum-II, Hyderabad, in E. A. No. 106 of 2007 is hereby raised - PETITION NO 84 OF 1997 Company Application Nos. 1660 and 1670 of 2007 - - - Dated:- 15-4-2010 - B. SESHASAYANA REDDY, J. M. Anil Kumar for the Official Liquidator. Nizaruddin Ahmed Jeddy for the Respondent. JUDGMENT B. Seshasayana Reddy, J. These two company applications have been taken out by the official liquidator on behalf of M/s. Asia Pacific Investment Trust Ltd. (in liquidation) seeking to quash the execution proceedings in E. A. No. 106 of 2007 in C. D. No. 814 of 2003 on the file of the District Consumer Disputes Redressal Forum-II, Hyderabad, and to raise the attachment order dated August 30, 2007; and seeking sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 and 7 therein jointly and severally to refund the maturity amount of Rs. 8,70,905 with interest at 12 per cent, per annum from February 1, 1998 till the date of payment and compensation of Rs. 87,000 and costs of Rs. 1,000, by order dated April 20, 2005. The opposite parties 2, 3, 4, 5 and 7 therein filed F. A. No. 1130 of 2005 on the file of the A. P. State Consumer Disputes Redressal Commission, Hyderabad, assailing the order passed in C. D. No. 814 of 2003. The appeal filed by them came to be disposed of on December 1, 2006. Thereafter, the decree holders i.e., respondents Nos. 1 to 4 herein, filed E. A No. 106 of 2007 for execution of the decree and sought attachment of the fixed deposit receipts standing in the name of the judgment debtors/opposite parties, i.e., M/s. Asia Pacific Investment Trust Ltd. (in liquidation). The District Consumer Disputes Redressal Forum-II, Hyderabad, ordered for attachment of the amount and directed the State Bank of India, the fifth respondent to send the amount of Rs. 19,15,736. Hence, these two applications by the official liquidator, seeking the reliefs stated supra. 3. Notice before admission came to be ordered on October 17, 2007 in C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on pages 17-20." 5. Heard learned counsel appearing for the official liquidator and learned counsel appearing for the respondents Nos. 1 to 4. 6. Learned counsel appearing for the official liquidator submits that the order of winding up of M/s. Asia Pacific Investment Trust Ltd., (in liquidation) came to be passed on August 19, 1998 and therefore, any proceedings initiated by respondents Nos. 1 to 4 against the company (in liquidation) without obtaining leave of this court under section 446 of the Companies Act, 1956, do not bind the official liquidator, in which case, the decree obtained by respondents Nos. 1 to 4 in C. D. No. 814 of 2003 does not confer any right on them to proceed against the properties of the company (in liquidation), which are vested with the official liquidator. Learned counsel refers to section 446 of the Companies Act, 1956. 7. Learned counsel appearing for respondents Nos. 1 to 4 submits that respondents Nos. 1 to 4 invested their hard-earned money in the company (in liquidation) and there being no other alternative, they proceeded with filing of complaint before the District Consumer Disputes' Redressal Forum-II, Hyderabad and obtained decree ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt in terms of contract between the parties. Where the company becomes defunct or sick, it is not attributable to the consumer, as they have no role to play in it. It is the consumer who suffers at the hands of such a company who became defunct and sick due to mismanagement of its affairs or any other reasons and the conduct of affairs of the company qua the consumer has to be decided and adjudicated on the anvil of the definition of "deficiency in service" provided by the Consumer Protection Act. 11. Indisputably, by the date of respondents Nos. 1 to 4 filing C. D. before the District Consumer Disputes Redressal Forum-II, Hyderabad, the company (in liquidation) was directed to be wound up by an order dated August 19, 1998 passed in Company Petition No. 84 of 1997, and the official liquidator attached to this court was appointed as its liquidator. The provisions of the Companies Act relating to winding up are intended to give relief to the company which is insolvent, from the harassment of its creditors on the one hand and to provide a machinery by which all creditors are equally satisfied, on the other hand. It is established principle that insolvency law is devised for the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch application has been made or is made before or after the order for the winding up of the company, or before or after the commencement of the Companies (Amendment) Act, 1960. (3)Any suit or proceeding by or against the company which is pending in any court other than that in which the winding up of the company is proceeding may, notwithstanding anything contained in any other law for the time being in force, be transferred to and disposed of by that court. (4)Nothing in sub-section (1) or sub-section (3) shall apply to any proceeding pending in appeal before the Supreme Court or a High Court." 13. Under section 456(2) of the Companies Act, 1956, all the properties and effects of a company shall be deemed to be in the custody of the court from the date of the order for the winding up of that company. The official liquidator is only an officer of the court appointed under section 448 of the Companies Act and he is the liquidator of the company by virtue of section 449 of the Companies Act. Appointment and powers of the provisional liquidator are governed by section 450 of the Companies Act. Generally, he shall have the same powers as a liquidator unless it is limited or re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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