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TMI Blog2014 (2) TMI 1014X X X X Extracts X X X X X X X X Extracts X X X X ..... /s. Cyber Space Ltd. ("the company"). 2. The application came to be filed in these circumstances. A winding-up petition in CP 354/2001 was filed by the Registrar of Companies (ROC) under Section 433 (f) and (e) of the Companies Act, 1956 seeking winding-up of the aforesaid company. It is not necessary to delve in detail into the circumstances which prompted the ROC to file the winding-up petition; suffice to note that it was based on the report of the Central Bureau of Investigation which carried out searches and investigation into the affairs of the company and came to the conclusion that the company had misappropriated monies belonging to several investors aggregating to Rs.11.46 crores. The winding-up petition was admitted by this Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the dismissal of the company petition. On 27.04.2004 this Court disposed it of holding that the winding-up order cannot be recalled but gave liberty to the ex-director to file a scheme for the revival of the company in liquidation. An appeal was taken against the aforesaid order to the Division Bench of this Court which by order dated 04.09.2012, appears to have set-aside the order, as a consequence of which this Court on 15.10.2012 restored C.A. No.1261/2007 to its original number and directed the filing of supplementary affidavits from the applicant in support of the reasons for the delay in seeking recall of the final winding-up order. 4. In the affidavit filed on 27.11.2007 the applicant described himself as the single largest equity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r recall of the same. It is further pointed out that as soon as the applicant obtained bail and was released on 15.07.2007, he came to know of the final winding-up order and in November, 2007, took steps to have the same recalled by filing the present application. It is submitted that in similar circumstances the Gujarat High Court, in the case of Sinha Watches (India) P. Ltd. vs. Gujarat State Financial Corporation : (1985) 58 Comp. Cas. 489, has held that the order of winding-up which was passed ex-parte was liable to be set-aside on the application of the managing director of the company who was incarcerated during the material period and was, therefore, unaware of the winding-up proceedings and the orders passed therein. 6. The learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so pointed out that when orders were passed by this Court on 12.10.2004 appointing the provisional liquidator and directing citations, the counsel for the company was present. He further pointed out that pursuant to the final winding-up order, the registered office of the company was sealed on 05.10.2005 and notices under Section 454 of the Companies Act were issued on 17.11.2005. It is further pointed out that when the winding-up petition was heard on 02.08.2004 by this Court, counsel for the company was present, but thereafter nobody represented the company in the winding-up proceedings. Counsel for the OL points out that the company did not choose to effectively and fully avail of the opportunity given to it to resist the winding-up peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t were served on the company against which winding-up proceedings were taken. The order of this Court appointing the provisional liquidator was passed on 12.10.2004 at which time the applicant was a free man and was not incarcerated. As submitted by the learned counsel for the applicant, the applicant was sent to custody in March, 2005. This Court is asked to believe that the founder-director of the company and it is largest shareholder was not aware of the winding-up of the proceedings or of the order passed by this Court appointing the provisional liquidator for a period of nearly 5 months i.e. from November, 2004 to March, 2005. It is also contrary to the probabilities and opposed to the normal course of human conduct that the diligence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as away in Switzerland; she was not served on behalf of the company in the company petition, nor was the managing director served. The order of winding-up and appointing provisional liquidator was passed by the High Court on 30.06.1981, when the managing director was in custody and his wife, the only other director of the company, was away in Switzerland. It was in these circumstances that the Gujarat High Court held that the company, though being a legal entity, could not have appeared by itself and could appear only through its officers who were well-versed in the affairs of the company, and that since both the directors in the company were not served and were not in the know of the winding-up proceedings, the managing director was entitl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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