MOHAMMAD RAFIQ,J. -
(1.) This appeal under Section 483 of the Companies Act, 1956 read with Rule 134 of the High Court Rules, 1952, has been preferred by applicant/appellant Hardeep Singh Dhawan, challenging the order dated 30.08.2018, by which his application for recall of the order dated 18.07.2003 has been dismissed by learned Company Judge on the premise that no reasons have come forward for delay in filing such application.
(2.) Mr. Anuroop Singhi, learned counsel for the applicant/appellant, submitted that petitioner/respondent M/s. Ispat Industries Limited, a company registered under the Companies Act, 1956, filed a petition on 17.03.1998 under Sections 433(E), 434 and 439 of the Companies Act, 1956, for winding up of M/s. Team Metals Private Limited. The said petition was admitted on 05.04.2002. The date of hearing of the winding- up petition was published in a daily newspaper 'Hindustan Times' (Jaipur Edition). Since no one appeared to oppose or support the petition, the winding-up order was passed by this Court on 18.07.2003. According to the applicant/appellant, the Directors of the Company learnt about the proceedings of the winding-up much after in the year 2007. Neither there are any dues of the secured creditors nor are there any dues against any unsecured creditors. The claim of the unsecured creditor M/s. Ispat Industries Limited, subsequently known as Jindal Steel and Power Limited, was settled long back. The unsecured creditors vide letter dated 21.11.2007 informed the Bank of Baroda that it has settled its dues with the Teem Metals Private Limited and stated that they would instruct their lawyer to withdraw the matter from the court.
Mr. Anuroop Singhi, learned counsel for the applicant/appellant, submitted that when the dues of the unsecured creditors and those of the Bank of Baroda, were fully settled by the Management of the Company in 2007, there was no occasion for the appellant to believe that the proceedings for winding-up would remain pending before this Court. However, despite settlement, the winding-up proceedings before this Court continued and this Court in S.B. Company Petition No.20/1998 vide order dated 22.03.2018, accepted the bid of one M/s. ECR Buildtech Pvt. Ltd., New Delhi, subject to the terms and conditions of the NIT. It was in these facts that the applicant/appellant preferred an application seeking recall of the order dated 22.03.2018 as also the winding-up order dated 18.07.2003.
(3.) It is argued that the learned Company Judge, without considering the reasons and the grounds taken in the recall application has summarily rejected the same as there was no delay in filing the application. Learned counsel argued that the learned Company Judge has not assigned any reason whatsoever for rejecting the recall application and rejected the same in a cursory manner. He submitted that the learned Single Judge was not justified in observing that no reasons were mentioned in the recall application by the applicant/appellant. Reference is made to grounds A to I of the recall application to substantiate the submissions. One of the reasons was that dues of Ispat Metals Limited (now known as Jindal Steel and Power Limited), who filed the petition, were fully settled, which was acknowledged by him in his letter dated 21.11.2007. Thereafter, there was no reason for the applicant/appellant to believe that the winding-up petition is still pending before the Company Court.
Mr. Anuroop Singhi, learned counsel, in support of his arguments, cited the judgments of the Gujarat High Court in Niranjan B. Shah Vs. Suresh Steel Corporation and Others - 2011 (162) CC 100, Bombay High Court in Shekhar Electricals Vs. Falcon Retreat Pvt. Ltd. - 2018 (93) Taxmann.com 344 and Om Prakash J. Mehra Vs. O.L. of M/s. Surlex Diagnostic Ltd. - 2012 (27) Taxmann.com 153, and that of Karnataka High Court in M.R. Khan Vs. Maldini Yarn Pvt. Ltd. - 2014 (48) Taxmann.com 81, and argued that various High Courts have allowed recall applications and recalled the winding-up order even as many as 33 years after winding-up order, holding that a winding-up order once made, can be revoked or recalled. The learned Company Judge ought to have allowed recall application. The delay, if at all, stands duly explained as the winding-up order dated 18.07.2003 was ex-parte and the dues of the unsecured creditor were duly settled. The appellant is the original promoter and thus cannot be deprived of its effort and property. No prejudice would be caused to the subsequent buyer as the amount of bid submitted by the subsequent buyer has been kept by the Official Liquidator in the fixed deposit which would be duly reimbursed to it along-with interest. Otherwise also, no claim as a matter of right can be made by the subsequent buyer. As regards the argument of the Official Liquidator that there are statutory dues of the Commercial Tax Department etc., it is submitted that they are all arising out of ex-parte proceedings, wherefor the applicant/appellant has taken separate remedy. It is therefore prayed that the appeal be allowed.
Mr. Gaurav Sharma Saraswat, learned counsel for the respondent no.2 Official Liquidator, submitted that the applicant/appellant has relied on the letter dated 21.11.2007 written by Jindal Steel and Power Limited, Raigarh to the Bank of Baroda stating in the subject - the full and final settlement in the legal matter of Jindal Steel and Power Limited for Rs.11,00,000/-, and therefore they have instructed their lawyer to withdraw the matter from the Court. This cannot be a justified reason to assume that the winding-up proceedings were terminated by withdrawal. The applicant/appellant has failed to produce any document with regard to the actual settlement deed or terms, any NOC letter, accounts of discharge by the creditor and any document to show that the Jindal Steel is Ispat Industries, who was the petitioner in the winding-up petition or any affidavit on behalf of the Jindal Steel to prove the letter being genuine. ;