KOTHARI INDUSTRIAL CORPORATION LTD Vs. KOTAK MAHINDRA BANK LTD

JUDGEMENT

(1.) THIS appeal is filed against the order of the Company Court dated 08.04.2009 made in CP No.51 of 2007 ordering winding up of the appellant company under the provisions of the Companies Act, 1956 and directing to advertise within 14 days a notice in the prescribed form of making of the order of winding up in one issue of Tamil Daily "Dinamani" and another two issues in the English daily "Indian Express" and the "Times of India" (All India Edition) and other peripheral directions.

(2.) THE above said winding up order is assailed by the appellant on several grounds. THE primal and material ground on which the order of the Company Court is challenged, is that none of the statutory provisions, which are mandatory in nature for ordering winding up of the company, has been not only taken note of, but also followed in this case. Even without admitting the company petition, the winding up order has been passed, which is ex facie an illegal order as it is against the requirements of the statutory provisions i.e., Rules 96 and 99 of the Companies (Court) Rules, 1959 and the impugned order is quite contrary to section 443(2) of the Companies Act.

(3.) THERE is no dispute about the way in which the order of winding up is passed by the company Court, i.e., the order of the company Court is passed without following the mandatory statutory provisions, which is evident from paragraph 5 of the order, wherein the Company court has categorically stated that on notice, the respondent has filed its counter disputing the averments contained in the company petition". Upon hearing the parties on pre-admission notice stage the impugned order of winding up is passed.