ASIA PACIFIC INVESTMENT TRUST LTD. vs AMOD JUNEJA

SINCE the above mentioned appeals, filed by the appellant, under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ''the Act'') have common facts and also raise common questions for consideration, the same with the consent of the learned Counsel for the parties/parties have been heard together and are being disposed of by this common order.

THE facts, relevant for the disposal of the above mentioned appeals, lie in a narrow compass. In all the above mentioned appeals, the respondents had made deposits (Fixed Deposits) with the appellant. THE deposits, so made, by the respondents with the appellant were to carry interest at the agreed rate and after the date of maturity, the same were payable by the appellant to the respondents together with agreed interest. Since the appellant failed to pay the amount of deposits together with agreed rate of interest to the respondents, the respondents filed separate complaints against the appellant before the District Forum under Section 12 of the Act with the prayer that the appellant be directed to refund the amount of deposit together with interest and compensation. The learned District Forum, vide orders, being impugned in the present proceedings has allowed the complaints and has directed the appellant to refund the amount in question to the respondents together with interest and costs.

Feeling aggrieved, the appellant has preferred the above-mentioned appeals under Section 15 of the Act. Notice of the appeals was issued to the respondents, who have entered appearance either in person or through their authorised Advocates.

WITH the consent of the parties the matter was heard finally by this Commission on 6.9.1999, and orders were reserved to be pronounced on 10.9.1999. However, on 10.9.1999, before the orders could be pronounced, the learned Counsel for the appellant filed an application, seeking leave to place on record a copy of order dated 19.8.1998, passed by the Hon''ble High Court of Andhra Pradesh in Company Petition No. 84/97 - entitled Sh. Bhaskar Duttatraya Shinde & Ors. v. M/s. Asia Pacific Investment Trust Ltd. A copy of the above said application, filed by the learned Counsel for the appellant on 10.9.1999, was given to the respondents/Counsel for the respondents and the matter was adjourned to 24.9.1999. On 24.9.1999, again the matter had to be adjourned as the Counsel for the appellant due to the death of his grand father had to go to Jammu and Kashmir and was not in a position, to appear before this Commission. On 1.10.1999, arguments in respect of appellant''s application dated 10.9.1999, seeking leave to place on record a copy of order dated 19.8.1998, passed by the Hon''ble High Court of Andhra Pradesh in Company Petition No. 84/97, were heard and after hearing the parties, vide order dated 1.10.1999, the prayer made by the appellant for placing on record a copy of the above said order of the Hon''ble High Court of Andhra Pradesh, was allowed. Again on 3.11.1999, we heard at length the learned Counsel for the party/parties. During the course of arguments, it was stated by the learned Counsel for the appellant that in view of the winding up order passed by the Hon''ble High Court of Andhra Pradesh in Company Petition No. 84/97, the present proceedings against the appellant cannot continue in terms of provision contained in Section 446(1) of the Companies Act, 1956. On the other hand, it was contended by the learned Counsel for the respondent/respondents that the above said contention, advanced by the learned Counsel for the appellant, was without any substance and was liable to be rejected summarily.

THE only question requiring consideration in the above mentioned appeals at this stage is as to whether in the presence of order dated 19.8.1998, passed by the Hon''ble High Court of Andhra Pradesh in Company Petition No. 84/97, - entitled Sh. Bhaskar Dattatraya Shinde & Ors. v. M/s. Asia Pacific Investment Trust Ltd., the present proceedings against the appellant can continue ? Section 446 of the Companies Act, 1956, which is relevant for deciding the above question, reads as under : "Suits stayed on winding-up order-(1) when a winding-up order has been made or the Official Liquidator has been appointed as Provisional Liquidator, no suit or other legal proceedings shall be commenced, or if pending at the date of winding-up order, shall be proceeded with, against the Company, except by leave of the Court and subject to such terms as the Court may impose. (2) The Court which is winding-up the Company shall, notwithstanding anything, contained in any other law for the time being in force, have jurisdiction to entertain, or dispose of- (a) any suit or proceeding by or against the Company; (b) any claim made by or against the Company (including claims by or against any of its branches in India); (c) any application made under Section 391 by or in respect of the Company; (d) any question of priorities or any other question whatsoever whether of law or fact, which may relate to or arise in course of the winding-up of the Company; whether such suit or proceeding has been instituted, or is instituted, or such claim or question has arisen or arises or such application has been made or is made before or after the order for the winding-up of the Company, or before or after the commencement of the Companies (Amendment) Act, 1960. (3) Any suit or proceedings by or against the Company which is pending in any Court other than that in which the winding-up of the Company is proceeding may, notwithstanding anything contained in any other law for the time being in force, be transferred to and disposed of by that Court. (4) Nothing in Sub-section (1) or Sub-section (3) shall apply to any proceeding pending in appeal before the Supreme Court or a High Court. (Underlined by us)

On a plain reading of the above provision of Section 446 of the Companies Act, 1956, it is apparent that after a winding-up order is made in respect of any Company, a suit or other proceedings whether instituted before or after the order for the winding-up of the Company, cannot continue without the leave of the Court which has ordered for the winding-up of the Company. The only exception has been made in respect of any proceedings pending in appeal before the Hon''ble Supreme Court or before Hon''ble High Court. It is not in dispute that the Hon''ble High Court of Andhra Pradesh in Company Petition No. 84/97, entitled Sh. Bhaskar Dattatraya Shinde & Ors. v. M/s. Asia Pacific Investment Trust Ltd. has passed an order directing the winding-up of the appellant Company. Since a winding-up order has already been passed by the Hon''ble High Court of Andhra Pradesh on 19.8.1998 in respect of the appellant Company, the above proceedings against the appellant Company cannot continue without the leave of the Court in terms of provision contained in Section 446(1) of the Companies Act, 1956.

IN view of the position explained above, the above mentioned appeals are adjourned sine-die with the directions that the respondents may seek the leave of the Court in terms of the provision contained in Section 446(1) of the Companies Act, 1956, if so advised, and after the grant of the leave by the Court, may approach this Commission for the revival of these proceedings. Appeals adjourned.