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Judgment
Mr. Surajit Nath Mitra, learned Senior Advocate appearing for Yashdeep Trexim Pvt. Ltd., resumes his submissions. He refers to order dated 20th February, 2014 by which the Company Court did not allow prayer for withdrawal of money deposited in court, until pending matters were heard out and the competence of the applicant (being the company through persons in control thereof) to obtain the money is decided in its favour. By that order the said Court also was of the view that by virtue of the winding up order the proceedings have acquired a representative character.
He submits, appeal was preferred by the company which resulted in judgement dated 14th August, 2014. He draws attention to the recital of background of the case in the said judgement and emphasises the finding thereupon that even the issue as to whether the winding up proceeding against the said company was permanently stayed or not, remained unanswered in the Special Leave Petition [the judgement referred being Radheshyam Ajitsaria (supra)]. He submits, though by the judgement the interlocutory order was affirmed, yet the Appeal Court, according to him, found that no order passed under Section 466 of the Companies Act, 1956 could be produced by the company in spite of repeated insistence. He relies on the following portion in the said judgement :- "....In this regard, it is worth mentioning here that apart from mentioning here that apart from mentioning that the Company is a going concern and the winding up proceeding against the said company has been permanently stayed under Section 466 of the Companies Act, 1956, by the Hon''ble Supreme Court in the said judgement dated 24th May, 2006 passed in the Civil Appeals No.4101-4103 of 2004, the order passed by the Company Court and/or any other competent Court staying the winding up proceeding against the said company permanently under Section 466 of the Companies Act, 1956, could not be produced before this Court by the appellant/petitioner in spite of repeated insistence of this Court. An order of permanent stay of the winding up proceeding is a judicial order to be passed by the Company court under Section 466 of the Companies Act, 1956 which the appellant/petitioner has failed to produce before this Court. "
He next refers to judgement dated 12th March, 2015 in, inter alia, Civil Appeal nos.2814-2815 of 2015 (Baranagar Jute Factory PLC vs. Shreekishan Omprakash & Anr.). He submits, in this appeal preferred by the persons claiming to be in control of the company and urging that the winding up proceeding in respect of it stands permanently stayed, obtained a direction that the Company Judge before whom all applications are pending should dispose of the same as expeditiously as possible, such being the opinion of the Supreme Court on the facts and circumstances. He submits, this judgement came on 12th March, 2015 and such direction could not have been made by the Supreme Court if it itself had earlier decided that the winding up proceeding in respect of the company stood permanently stayed. He then reiterates submissions made earlier regarding the same persons having had applied for permanent stay of winding up of the company which applications are still pending.
He submits, his client had by a writ petition also challenged applicability of the Sick Industrial Companies (Special Provisions) Act, 1985 to the company being one incorporated in United Kingdom. He relies upon judgment dated 1st April, 2011 passed in appeal against such challenge being upheld, to several passages therein including the record of submissions made on behalf of the company that the appeal should be heard out expeditiously as no factual question is involved, only question of law required to be decided. On query from Court, he clarifies that the question of law was that relating to the challenge but several directions were made including upon the Joint Special Officers appointed by the Company Court as were accepted by the parties. He submits, the appeal was ultimately decided reversing the judgement of the learned Single Judge. The matter traveled to the Supreme Court and the said Court came to pass the judgement as in Yashdeep Trexim Pvt. Ltd. (supra). Referring to Yashdeep Trexim Pvt. Ltd. (supra) Mr. Mitra submits, by relying on paragraph 3 therein, the said Court said it had perused the relevant facts and voluminous pleadings which seem to suggest that the initial order of stay of the winding up dated 22nd September, 1988 had been extended from time to time and till the present date different schemes for running the affairs of the company has been framed and implemented pursuant whereto the company has been functioning as a going concern. On query from Court he submits, the rest of the said paragraph are record of applications pending and a submission made on behalf of the company. With reference to paragraph 10 of that judgement he stresses on the direction made therein upon taking into account all that had been stated in the judgement to be the view of the said Court that it would be just, proper and equitable to leave the contesting parties to pursue their remedies before the High Court or such other forum as may be competent in law. According to him, this militates against the contention that the said Court had itself pronounced on fact regarding winding up proceeding of the company being permanently stayed.
He concludes his submissions seeking leave to add anything which may have left out on the next occasion.
List on 11th January, 2018 for further hearing.