- (1.) Heard Shri Om Prakash Mishra, Advocate on behalf of Kotak Mahindra Bank Ltd. , Mrs. Kirtika Singh, Advocate on behalf of Elgin Mills Company Ltd. and Shri Shubham Agrawal, Advocate on behalf of Official Liquidator.
(2.) This Company Petition has a chequered history as would be clear from the facts noticed in the order of the Division Bench of this Court passed in Special Appeal No. 439 of 2011 which is quoted herein below: On 25.10.2010 M/s Elgin Mills Company Ltd. was wound up by the learned Company Judge under Section 433 (e) (f) and 434 of the Companies Act, 1956 with the following order:- "This is a petition for the winding up of Company M/s Elgin Mills Company Ltd, 16/8, Sutherland House, Civil Lines, Kanpur U. P. under Section 433 (e) (f) and 434 of the Companies Act, 1956. The allegations made by the petitioner Company stand un-answered with regard to the failure and neglect of the Company to pay sum of Rs. 8,29,63,420/- only. Thus, the Company is liable to be wound up under the provisions of Section 434 of the Act. This Company petition has been advertised under Rule XXIV of the Companies (Court) Rules in two newspapers on 8th of May, 2010 and has also been published in the Gazette of Uttar Pradesh on 5th of June, 2010. The affidavit of service has been filed on record. Thus, the procedural aspect is complete. This Company may be wound up under Section 434 of the Act. The Official Liquidator to take charge of the Company. The petitioner may now publish the winding up order under Rule 113. He may take steps to do so within a period of two weeks. "
(3.) An application was filed by Ms. Kritika Singh on 9.11.2010 alleging that she could not contact Shri R. K. Misra, G. M. , who was looking after the case. There was no deliberate negligence and that the absence of the counsel is regretted. The company judge accepted the explanation given by Ms. Kritika Singh and recalled the order dated 25.10.2010. The order impugned in this appeal recalling the winding up order is quoted as below:- "Heard learned counsels for both sides and I have perused the recall application, the supplementary affidavit filed in support of the recall application as well as the counter affidavit filed by Sri O. P. Mishra, who appears for M/s Kotak Mahindra Bank Limited. The order dated 25.10.2010 records that the allegations made in the petition have not been answered and no one appeared on behalf of the respondent-company on that date. The circumstances on account of which counsel for the respondent-company Mrs. Kirtika Singh was not able to appear on that particular date have been explained by Sri V. B. Singh, Senior Advocate. The explanation given by Mrs. Kirtika Singh is accepted by this court for this one instance. The order passed on 25.10.2010 is recalled. The matter may not be treated as part heard or tied up to me. It may be listed before the appropriate court in the next cause list. ";