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TMI Blog2015 (10) TMI 1716X X X X Extracts X X X X X X X X Extracts X X X X ..... hich was earlier in liquidation in the proceedings decided on 12.05.2014. It has been pleaded that the company is now out of liquidation as it has settled all the secured or unsecured creditors. 4. The company started its commercial production in about 1990. It started making losses in 1996 and faced labour problems which led to retrenching of workers. The financial position of the company continued to deteriorate and thus putting strain on the performance of the company. In 1998, in the liquidation petition, a winding up order was passed and the petition was allowed on 07.01.1999. An official liquidator was appointed to take charge of all the assets. The order of admission of the petition and the order of winding up was challenged in company appeal before the Division Bench. No interim relief was granted. The appeal is still stated to be pending before the Division Bench. 5. The company had approached Small Industries Development Bank of India (here-in-after referred to as SIDBI) for sanction of limit under the Direct Discounting of Bills (Components) to the extent of Rs. 200 lac and the limit was secured by second charge on the fixed assets of company and personal guarantee of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of justice. The petitioners had pleaded that in view of the five Judges Bench judgment reported in Kulwinder Singh Vs. State of Punjab, 2007(3) Law Herald (P&H) 2225, the FIR should be quashed. The petitioners had also prayed for interim stay. 8. A co-ordinate Bench before whom the matter was listed for the first time, passed the following order on 11.12.2014 :- "It is contended by the learned senior counsel appearing on behalf of the petitioners that FIR had been registered against the petitioners on 22.12.2000, as per which, the company and its directors were guilty of pledging share certificates having the same distinct folio number to SIDBI whereas the same had earlier been pledged to Ganesh Export Pvt. Ltd. Over the years, the company went into liquidation and proceedings were also initiated against them before the Debt Recovery Tribunal, New Delhi. After concerted efforts, the company and its directors managed to settle their outstandings with both their secured and unsecured creditors. Perusal of Annexure P2 issued on 01.07.2013 shows that under a one time settlement of dues, all the outstanding of the company towards SIDBI have been settled and the company's accounts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acs would be honoured. It was pleaded that the bank drafts were realised while the other cheques totalling Rs. 3 crores had bounced when presented for payment. It was further pleaded that the investigations revealed that out of 20 lac shares of Rajasthan Breweries Ltd. pledged with SIDBI, 8,89,000 shares having distinctive numbers were pledged with IDBI, Mumbai as collateral security for a bridge loan of Rs. 10 crores. Out of 2.4 lac shares pledged with SIDBI, 30,000 shares with the same certificate were found to be already pledged with IDBI, Mumbai as collateral security and the company had issued duplicate share unauthorizedly and dishonestly and availed the credit limit from SIDBI. The investigations also revealed that Ashok Jain, Director of M/s. ACIL had informed SIDBI of having purchased printed metal sheets from the seller and had introduced M/s. V.K. Packaging Industries as SSI Unit. M/s. V.K. Packaging Industries also furnished a certificate certifying to have sold printed metal sheets manufactured by them, to M/s. ACIL. Investigations, however, revealed that M/s. V.K. Packaging Industries was a non-existing company and G.P. Aggarwal, the authorized signatory was the fath ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d sought time to argue. 12. Heard. 13. The counsel for the petitioners had urged that the petition was filed in this Court as the winding up proceedings took place here. It was urged that the registered office of the company is at Rewari, Haryana. The counsel referred to Section 10 of the Companies Act and Annexure P-3. It was urged that the company had approached the Court for revival of the company and the winding up order was recalled and the matter was pending, therefore, they had approached this Court for quashing of the FIR. The counsel referred to Section 446 of the Company Act, 1956 and urged that any suit or proceeding by or against the company can only be filed where the winding up proceedings have been taken. He sought support from Steel Authority of India Ltd. Vs.O.L. of Gujrat Steel Tubes Ltd. And 5 others, decided on 13.09.2005. The counsel extensively referred to para no.7 of the judgment and laid stress to the provisions contained in Section 446 (2) (a) and urged that the word 'proceeding' used in the Section would include criminal proceedings. It was urged that since the matters before the DRT had been settled and all the amount had been paid, therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trict Court to exercise all or any of the jurisdiction conferred by this Act upon the Court, not being the jurisdiction conferred- (a) in respect of companies generally, by sections 237, 391, 394, 395 and 397 to 407, both inclusive; (b) in respect of companies with a paid- up share capital of not less than one lakh of rupees, by Part VII (sections 425 to 560) and the other provisions of this Act relating to the winding up of companies. (3) For the purposes of jurisdiction to wind up companies, the expression" registered office" means the place which has longest been the registered office of the company during the six months immediately preceding the presentation of the petition for winding up. 17. Section 446 reads as under:- 446. Suits stayed on winding up order. (1) When a winding up order has been made or the Official Liquidator has been appointed as provisional liquidator, no suit or other legal proceeding shall be commenced. or if pending at the date of the winding up order, shall be proceeded with, against the company, except by leave of the Court and subject to such terms as the Court may impose. (2) 3 The Court which is winding up the company shall, notwith- standin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Negotiable Instrument Act was held to be not an action against the assets of the company and it was held that they could not be transferred to the company Court. 20. The petitioners claim that this Court would have the jurisdiction since the winding up proceedings were taken up by this Court. The petition is silent and they have not specifically pleaded this fact in their petition. The counsel for the petitioners had referred to Steel Authority's case (supra) but I find that the judgment is of no help. There a party in the capacity of the Managing Director of the company had filed a criminal complaint. An objection was taken that the Magistrate's Court had no jurisdiction to entertain and dispose off the criminal complaint filed by the company in liquidation through its Managing Director when the company had gone in liquidation and official liquidator had been appointed. It was observed that there are offences against an Act in which the official liquidator has to launch proceedings and therefore, the case was transferred with a direction to the Official Liquidator to examine the complaint and proceed with the same in accordance with law. The authority is not applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isdiction to transfer a criminal case from one Court to another and the expression other legal proceedings occurring in Section 446(1) did not embrace within its fold a criminal proceedings. 23. The definition of Court in Section 2(11) of the Companies Act, 1956 clearly states that the Court would mean the Court having jurisdiction with respect to the matter relating to the company as provided under Section 10 and with respect to any offence against the act meaning thereby the Companies Act, it would be the Court of the Magistrate of the Ist Class having jurisdiction. 24. The expression "Court which is winding up the company" will comprehend the Court before which a winding up petition is pending or which has made an order for winding up of the company. Such a Court Ipso facto would have jurisdiction to entertain the proceedings enumerated in Clause a to d of Sub Section 2 of Section 446 of the Act. 25. In the present case there is no case against the Act, nor the matter relates to the winding up of the company. The allegations of cheating and fraud have been levelled against the partners regarding which the FIR has been registered in Delhi. It is the Delhi Court who had summone ..... X X X X Extracts X X X X X X X X Extracts X X X X
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