9911796707
TMI Blog2015 (8) TMI 1588X X X X Extracts X X X X X X X X Extracts X X X X ..... rishna Johri under Rule 6 read with Rule 9 of the Companies (Court) Rules, 1959 seeking setting aside of an order dated 14th September, 2005 passed by the Company Court directing the final winding up of the company, M/s Cyberspace Limited (hereinafter referred to as 'company'). 2. To the extent necessary, essential facts of the case are noted hereunder. Winding up proceedings were initiated against the company by way of Company Petition No. 354/2001 filed by the Registrar of Companies ('ROC' for brevity) under Sections 433(f) & 439(e) of the Companies Act, 1956. This petition was based on a report of the Central Bureau of Investigation which had carried out searches and investigation and concluded that the company had mis-appropriated the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any in liquidation. 7. The order dated 27th April, 2012 was set aside by the Division Bench by its order dated 4th September, 2012. Company Application No. 1261/2007, as a result, came to be restored on 15th October, 2012 to its original number directing the appellant to file supplementary affidavits to explain the reasons accountable for the delay in seeking the recall of the winding up order. We extract hereunder, the explanation given by the appellant responsible for the delay in filing the application as noted by the learned Single Judge as under:- (i) in the Company Petition 354/2001, the appellant was not made the respondent, even though, he was the single largest equity holder and a founding director of the company; (ii) the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly thereafter that there was no representation on behalf of the company. 10. The impugned order notes that the order of provisional winding up and appointment of provisional liquidator was passed in the case on 12th October, 2004 when the appellant was not incarcerated and therefore, the appellant had ample opportunity to resist the winding up proceedings. In these circumstances, the learned Single Judge observed that the diligence shown by the appellant after his release on bail on 15th July, 2007 can be of no benefit and the Company Application No. 12612007 was rejected being devoid of merits. 11. Mr. P. Nagesh, learned counsel appearing on behalf of the appellant has drawn our attention to the Company Application No. 1261/2007. The app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gation is concerned, despite the filing of the chargesheet as back as in the year, 2001, even the charges have not been framed in the matter till date. In order to support his bonafide, it has been pointed out by Mr. P. Nagesh, that the appellant has duly submitted the statement of affairs of the company before the Official Liquidator. 14. Before us, it is being urged by learned counsel for the respondent that the order of learned Single Judge was justified keeping in view the delay in filing the application under consideration. However, it is not disputed before us that there is no statutory provision of limitation prescribed to decide such an application. 15. The above narration of the facts and circumstances of the case which were plac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... attention to the order dated 4th September, 2012 passed by the Division Bench in Company Appeal No. 66/2012, whereby, the order dated 27th April, 2012 of the learned Company Judge rejecting the recall application of the winding up order was set aside, the provisional winding up order still remained and it was observed that the statement of affairs of the company be made before the learned Company Judge who may take appropriate action in the matter. 18. We find that in the impugned order dated 21st January, 2014, the direction made on 27th April, 2012 has been repeated. This is obviously an error given the clear directions of the Division Bench in its order dated 4th September, 2012 and could not have been passed. 19. It is further pointed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant. It is submitted by Mr. P. Nagesh, learned counsel appearing for the appellant that no such details have been furnished till date. Mr. Nagesh would submit that there is substance in grievance of the petitioner that the figure reached by the CBI is not correct. 22. It is submitted by Ms. Anjana Gosain, learned counsel appearing on behalf of respondent No. 1 and Mr. Rajiv Bahl, learned counsel appearing for Official Liquidator that the winding up proceedings were initiated only on the report of the CBI and that the proceedings were initiated under Section 433(f) and 439(e) of the Companies Act. This by itself would not fulfil the requisite satisfaction of provisions contained under sub-section (f) of Section 433 of the Companies Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
