Prakash Krishna, J. - (1.) THE above joint application has been filed with the prayer to permit the withdrawal of winding up petition No. 7 of 1997. THE relevant facts may be noticed in brief.
(2.) PUNJAB National Bank, one of the nationalized banks on 21.1.1997 filed winding up petition against M/s. Modi Export Processors Limited (hereinafter referred as MEPL) with the allegations that MEPL possesses and was carrying on the business through its four units/undertakings. The business of the com pany is lying suspended since 1983 and company has accumulated losses for exceeding its total net-worth. This Court by the judgment dated 24th September, 2005 passed winding up order as the respondent company has failed to pay its admitted dues after statutory notice of demand with the further finding that it has not carried out any business since 1983 and has become commercially insol vent. The said order has attained finality as no appeal within prescribed limit was filed. In pursuance of the winding up order, the Official Liquidator took the posses sion of the properties of the company in liquidation and its possession is still continuing indisputably. The present application has been filed with the allegation that a settlement has been arrived at in between PUNJAB National Bank and the company in liquidation whereunder the Company in liquidation has paid a sum of Rs. 1,56,00,873.38 towards the full and final settlement of the outstanding dues of the bank by way of one time settlement (OTS). It has been stated that in view of the aforesaid developments and fact that till date no creditor has come forward and the premises are in custody of the Official Liquidator at present, the winding up order passed in the above petition No. 7 of 1997 be recalled and the Company in liquidation may be revived, thus. The said application is being hotly opposed by the labourers through "Modi Spinning and Weaving Mills Workers Union, Modinagar, Ghaziabad" (for short union). It may be placed on record that by an earlier order, the said Union has been permitted to be impleaded as a party in the proceeding. In the counter affidavit the case set out by them is that the Union-applicants are creditors of the company in liquidation and money due to the workmen may be made available to the Official Liquidator so that he may be able to distribute the same to the work men. Reliance has been placed on the Rules 101 to 105 of the Company (Court) Rules. Further, it has been stated that although the winding up order was passed on the application moved by the punjab National Bank, if the latter is not inter ested to proceed further in the matter, the workers-union may be permitted to pursue the matter instead. Heard Shri Vijai Bahadur Singh, learned senior counsel along with Ms. Kirtika Singh, advocate, in support of the application, Shri K.P. Agrawal, learned senior counsel along with Ms. Sumati Rani Gupta, advocate, on behalf of the workers Union and Shri Raj Nath N. Shukla, advocate, on behalf of the Official Liquidator.
(3.) SHRI V.B. Singh, learned senior counsel submits that the winding up peti tion was filed by the Punjab National Bank and since dues of the Punjab National Bank have been paid and no other creditor has come forward, it is desirable that the winding up order may be recalled so that the company may be revived. Elabo rating the argument, he submits that the workers Union have no locus standi in the matter to oppose the said withdrawal application. The philosophy of the Com panies Act is to revive a company and not to wind up as far as possible. Alterna tive jobs were offered to the erstwhile workmen and almost 90% have been pro vided jobs, except few who have not accepted the offer. It is not an appropriate forum to adjudicate the dues of the workmen, if any, which can be easily agitated and adjudicated upon by duly constituted labour Courts. In other words, the claim of labourers/workmen cannot be adjudicated upon by a Company Judge in wind ing up proceeding. Shri K.P. Agrawal, learned senior counsel, on the other hand, submits that the status of workers is as that of creditors of Company in view of Section 529A of the Companies Act. They stand at par with the secured creditors of the company in liquidation and also they are preferred secured creditors. In view of Section 529A, they are entitled to participate in a winding up petition as right of hearing has been given to the workers under the said statutory provision. Elaborating the argument, the learned senior counsel submits that one time settlement entered into with the Punjab National Bank by the company in liquidation outside the Court without intervention of the Official Liquidator, is null and void and is liable to be ignored. The Punjab National Bank could not have accepted any amount from the Company in liquidation without the leave of the Court and as such, the pay ment which has been received by the Punjab National Bank should be handed over to the Official Liquidator for its distribution among the creditors, secured and unsecured in accordance with the provisions of the Companies Act.;