TMI Blog2022 (8) TMI 479X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 138 of the Negotiable Instruments Act, 1881 has been filed after the date 28.02.2013 when the Provisional Liquidator had been appointed in Co.Pet. 36/2013 qua M/s Catmoss Retail Private Limited - The complaint filed in CC No.452/2014 relating to the cheque bearing No.206731 dated 30.06.2013 for an amount of Rs.8,00,000 was instituted on 12.08.2013 prior to the winding up order dated 27.03.2014 and vide order dated 10.07.2017 in CA No.52/2017 in Co.Pet. 36/2013, permission had been granted to the applicant thereof to continue with the complaint CC No. 2913/1/15. Application disposed off. - CRL.M.C. 764/2022 & CRL.M.A. 3195/2022 - - - Dated:- 8-8-2022 - HON'BLE MS. JUSTICE ANU MALHOTRA Petitioner Through: Mr. Chandan Bhatia, Advocate. Respondent Through: Mr. Izhar Ahmad, APP for State. Mr. B.N. Jha, Advocate for R-2. JUDGMENT ANU MALHOTRA, J 1. The matter has been reserved for orders vide order dated 12.07.2022. 2. The petitioner vide the present petition has sought the quashing of the summoning order dated 15.10.2014 of the Court of the learned ACMM East KKD in Complaint Case No.9168/2019 filed by the respondent No.2 against the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner on the verdict of the Hon ble High Court of Karnataka in M/s Religare Finvest Limited vs. Vijay Steel Tubes and Fitting Private Limited Company Petition No.70/2011 with observations in para 7 and 21 thereof which read to the effect:- 7. Accordingly, the petition is allowed. The respondent company is order to be wound up. The Official Liquidator attached to this Court shall take over the assets of the company and take further steps in the matter for recovery of the amounts due to the creditors and workmen. The petitioner company shall deposit a sum of Rs.35,000/- as the initial expenses before the Official Liquidator. The petitioner company shall also take out paper publication in the Hindu English newspaper in this regard. 21. On the aforesaid averments, complaint under Section 138 of the Negotiable instruments Act cannot be filed as on the date of presentation of the cheque the company was in liquidation and cannot be stated to have committed any offence. Even second and third accused (petitioner herein) were not the In-charge of the day-today affairs and conduct of the business of the company on that date. No doubt there are allegations of cheatin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 5. A fresh status report be filed by the OL before the next date of hearing. , making it apparent that only a Provisional Liquidator had been appointed. 7. In terms of Section 270 of the Companies Act, 2013, the modes of winding up of a company are prescribed to the effect:- 270. Winding up by Tribunal.- The provisions of Part I shall apply to the winding up of a company by the Tribunal under this Act. Section 271 of the Companies Act, 2013 provides the circumstances in which a company may be wound up by the Tribunal, which reads to the effect:- 271. Circumstances in which company may be wound up by Tribunal.- A company may, on a petition under Section 272, be wound up by the Tribunal,- (a) if the company has, by special resolution, resolved that the company be wound up by the Tribunal; (b) if the company has acted against the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality; (c) if on an application made by the Registrar or any other person authorised by the Central Government by notification under this Act, the Tribunal is of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (4) A petition presented by the company for winding up before the Tribunal shall be admitted only if accompanied by a statement of affairs in such form and in such manner as may be prescribed. (5) A copy of the petition made under this section shall also be filed with the Registrar and the Registrar shall, without prejudice to any other provisions, submit his views to the Tribunal within sixty days of receipt of such petition. Section 273 of the Companies Act, 2013 provides to the effect:- 273. Powers of Tribunal.-( 1) The Tribunal may, on receipt of a petition for winding up under Section 272 pass any of the following orders, namely:- (a) dismiss it, with or without costs; (b) make any interim order as it thinks fit; (c) appoint a provisional liquidator of the company till the making of a winding-up order; (d) make an order for the winding up of the company with or without costs; or (e) any other order as it thinks fit: Provided that an order under this sub-section shall be made within ninety days from the date of presentation of the petition: Provided further that before appointing a provisional liquidator under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nter alia submitted to the effect that the petitioner has deliberately not mentioned in the petition the order dated 10.07.2017 of this Court in Co.Pet. 36/2013, whereby it has been ordered to the effect:- CA No.51/2017 This application is moved by the applicant for seeking permission of this Court to continue with the Complaint Case No.2905/1/15, 2906/1/15, 2908/1/15 and 2911/1/15 as mentioned in para 5 of the application under Section 138 read with Section 142 of the Negotiable Instruments Act against the Respondent and its directors pending before the learned Metropolitan Magistrate. The Official Liquidator has not filed any reply to this application. The Provisional Liquidator in the present case was appointed on 28.02.2013 and the complaint was filed after the appointment of the Provisional Liquidator. Mr. Mayank Goel, learned counsel for the OL submits that without considering any aspect of the matter either in fact or in law, he has no objection in case the proceedings are continued before the learned MM subject to the condition that the OL who has taken over the assets and control of the company pursuant to the orders passed by this Court on 28.02.2013 be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he proceedings are continued before the learned MM subject to the condition that the OL who has taken over the assets and control of the company pursuant to the orders passed by this Court on 28.02.2013 be exempted from appearance and further no punitive order against the company or the OL be executed without the prior permission of this Court. Subject to the above, the applicant is permitted to proceed with the complaints bearing No. 2990/1/15 and 261/1/16. The application stands disposed of. , thus, submitting to the effect that the respondent had been permitted to proceed against the petitioner with the complaints. 10. On a perusal of the records of Co.Pet. 36/2013, it has been brought forth that the cheque bearing No.206731 dated 30.06.2013 for an amount of Rs.8,00,000 is the cheque dishonored qua CC No.452/2014 which bears CC No.9168/2019 with previous number CC No.2913/1/15 and the respondent had been permitted to continue with the complaint CC No. 2913/1/15 vide order dated 10.07.2017 CA No.52/2017 in Co.Pet. 36/2013, subject to observations therein. 11. Apart from this, it cannot be overlooked that it has been observed vide para 7(B) of the verdict of thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irected on 29.10.2013. There is no opposition to the winding up of the company except from Mr. Ashwani Chawla, the Managing Director of the respondent company. The learned counsel appearing for Mr. Chawla has referred to an application filed on behalf of the respondent company being CA No.1730/2013 and has submitted that the petitioner company ought not to be wound up. The principal ground taken in the said application is that the amounts owed by the respondent were not due and payable to the petitioner. It is further contended that the petitioner could take recourse to proceedings for recovery of the amount claimed but could not maintain proceedings for winding up of the respondent company. It is also contended that the proceedings are malicious. The documents produced by the petitioner along with this petition stand uncontroverted. It is an admitted case that the respondent had availed the financial facilities from the petitioner. The documents on record also indicate that the cheques issued by the respondent had been dishonoured. The learned counsel for the petitioner has pointed out the statement of accounts at pages 112 to 127 of the petition. The said statements clearly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecting winding up of the respondent company, the present application does not survive and stands disposed of. Report No.176/2014 The report is taken on record. The statement recorded of Mr. Ashwini Chawla under Rule 130 of the Companies Court Rules, 1959 indicates that the assets of the company had been dissipated during the period March to June, 2013. The learned counsel for the Official Liquidator has pointed out that Mr. Ashwini Chawla was in charge of the affairs of the company during the said period and was responsible for the affairs of the company. The learned counsel for the Official Liquidator has also pointed out that this is the period during which Mr. Ashwini Chawla had persuaded the Court to keep the order appointing a Provisional Liquidator in abeyance. The Official Liquidator is directed to examine whether Mr. Chawla is guilty of malfeasance and breach of trust, if so the Official Liquidator would move an appropriate application for seeking compensation. Dasti. , thus, it was vide order dated 27.03.2014 that M/s Catmoss Retail Private Limited was directed to be wound up. 14. The complaint filed in CC No.452/2014 relating to the cheque bearing N ..... X X X X Extracts X X X X X X X X Extracts X X X X
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