TMI Blog2014 (2) TMI 1014X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, in my view, could not have been unaware of the company petition or the proceedings in connection therewith before this Court prior to his being taken into custody in March, 2005; he could have, therefore, taken steps, to oppose the winding-up proceedings. In any case the publication of the citation in the English newspaper “The Statesman” was made before 12.10.2004 as recorded by this Court in its order passed on 22.03.2005. At that time the applicant was not in custody and, therefore, his claim that he could not have access to newspapers published in Delhi while he was in custody in Lucknow does not hold water. The company was represented before this Court in the winding-up proceedings and up to 02.08.2004 counsel had appeared for the company. It was only thereafter that there was no representation on behalf of the company. The order of provisional winding-up and appointment of provisional liquidator was passed in the present case on 12.10.2004 on which date the applicant was a free person. The publication in the English newspaper i.e. the Statesman was made and a copy of the citation published in the said newspaper was filed in the Court by the OL, as noted by this Court i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere seems to have been some delay in the publication of the citation in Jansatta (Hindi). Be that as it may, after taking note of the fact that the citations were published in both the newspapers, this Court passed an order on 14.09.2005 directing final winding-up of the company, observing therein that nobody appeared on behalf of the company even after the publications. This Court held that in these circumstances it would be just and equitable to wind-up the company. Intimation of the final winding-up order was directed to be sent to the ROC for deletion of the name of the company. 3. It would appear thereafter that the process of winding-up was set in motion and the liquidator took the usual steps contemplated by the Companies Act in this behalf. In the month of November, 2007, however, an application in C.A. No.1261/2007 was filed by the ex-directors seeking recall of the winding-up order as well as 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 learned counsel for the ROC, controverting the submissions made on behalf of the applicant, contended that even while in jail, the applicant could have known about the proceedings for the winding-up of the company and the orders passed by this Court and that the claim that the applicant was unaware of the proceedings or the order passed by this Court on 14.09.2005 was against probabilities and the normal course of human conduct. It was further submitted that the applicant was not diligent in the matter and has not made out any positive case in support of the application, despite the claim that he was the single largest shareholder of the company. It is further pointed out that the other shareholders and directors of the company were relatives of the applicant and it is improbable that the applicant did not hear from them about the winding-up proceedings and the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. It would have been quite natural for the directors who were respondents in the company petition to have informed the founder director/ single largest shareholder of the company that winding-up proceedings have been instituted against the company. The applicant himself if he was the founder director or the largest shareholder of the company ought to have exhibited more diligence in matters regarding the company. It cannot be denied that the notices/ orders of this Court 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 huma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the present case are crucially different. The company was represented before this Court in the winding-up proceedings and up to 02.08.2004 counsel had appeared for the company. It was only thereafter that there was no representation on behalf of the company. The order of provisional winding-up and appointment of provisional liquidator was passed in the present case on 12.10.2004 on which date the applicant was a free person. The publication in the English newspaper i.e. the Statesman was made and a copy of the citation published in the said newspaper was filed in the Court by the OL, as noted by this Court in its order dated 22.03.2005. The applicant thus had ample opportunity to resist the winding-up proceedings. He could not have been unaware of the citation published in the English newspaper or of the order of provisional winging-up and appointment of the provisional liquidator. He was not in custody when these developments took place. 10. In the above circumstances, the diligence shown by the applicant after he was released on bail on 15.07.2007 cannot avail him. The application is without merit and is accordingly rejected with no order as to costs. - - TaxTMI - TMITax - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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