1. Heard learned Advocate Mr. Pavan S. Godiawala for the Applicant and Official Liquidator of Hilton Organic Chemicals Private Limited (In Liquidation).
2. The present three applications are filed for recalling, reviewing of the three different orders dated 24.3.2011 passed in Company Petitions Nos. 109 of 2010 to 111 of 2010 filed by three unsecured creditors against Hilton Organic Chemicals Private Limited (In Liquidation).
3. The company had failed to represent its case before this Court in the proceedings of winding up petition and upon considering the submission and pleadings made in the above petitions, the final winding up order came to be passed in three petitions filed by the three unsecured creditors (Original Petitioners).
4. It is the say of the Applicants that, the applicants took over the management from the erstwhile management in the month of April, 2010 and such erstwhile management has not disclosed the liabilities pertaining to such unsecured creditors and has also not made them aware of the winding up proceedings. Further it is submitted by the Applicants that, the Erstwhile management of the Company now in Liquidation received the notice of the Official Liquidator for filing the statement of affairs which came to be forwarded to the applicants and before the Applicants obtain any information on the said behalf, on 14th June, 2011, the Official Liquidator had put the seal on the factory premises which was in running condition. Thereafter on 16th June, 2011, the Applicants preferred three Company Applications viz. Company Application Nos. 349 to 351 of 2011 for recalling of the winding up orders. Upon considering the vital facts placed before this Court, this Court passed the order on 17th June, 2011 directing the Official Liquidator to remove the seal of the company and permit the applicant company to function.
5. The Official Liquidator pursuant to the order, handed over the possession to the Applicants and also filed his report and it has been pointed out by the learned advocate for the Applicants that, Official Liquidator in his report of June, 2011 referred the minutes recorded by the Officials of the Official Liquidator that, the company was a running concern and production in the company was going on. Further the Registrar of Companies in the earlier applications were made party and ROC has also filed his affidavit dated 21st September, 2011 in which it was shown about the filing of the returns by the company.
6. It is submitted by the learned advocate for the Applicants, that, the Company now in Liquidation has already discharged its liabilities towards such unsecured creditors viz Ambica Industries, Pragati Enterprise and Commune Industries and such unsecured creditors have also given their no due certificates also the ledger account extract came to be produced by the Applicants which clearly shows that, the three unsecured creditors who have filed the winding up petitions were paid off their dues as settled. The unsecured creditors viz Ambica Industries, Pragati Enterprise and Commune Industries were served the notice of the Application but have not remained present as their dues are already paid off. The learned advocate for the Applicants placed on record the account statement along with the aforesaid documents.
7. Thereafter the Applicants were permitted to withdraw the Company Application Nos. 349 to 351 of 2011 to enable the Applicants to file appropriate applications before the same Company Judge who passed the final winding up order.
8. The Applicants preferred three Company Applications viz. Company Application Nos. 20 to 22 of 2012 for recalling and reviewing of the final winding up orders. This Court upon considering the facts and documents placed on record passed the order directing the respondents not to disturb the possession of the applicants over the Company. The Applicants in addition to the above submission also submitted that, the Company now in Liquidation, regularly discharging its contractual and statutory liabilities and is a going concern and if the winding up orders are not recalled the going concern shall be put into untold hardship and there would be huge loss to the applicants and also loss of employment. The Company now in liquidation is generating business and is regular in discharging its liabilities. It is further submitted by learned advocate for the Applicants that, there is no person supporting winding up petition and further the unsecured creditors who had filed the winding up order are also discharged and had given no due certificate and shown the inclination to withdraw the winding up petitions.
9. The notices are issued to the Original Petitioners but such persons have chosen not to remain present. It is submitted by the Advocate for the Applicants that, even on the earlier occasion such Original Petitioners has not appointed advocate and when contacted, they have shown their disinclination to remain present by stating that, they have already given the no due certificates and their dues are fully paid off. It is further submitted by the learned advocate for the Applicants that, on the earlier occasion on two occasion the notices were served on such Original Petitioners.
10. Ms.
Amee Yajnik, who appears for Official Liquidator, has placed on record a report of OL. In the said report it is stated that the OL has complied with the order dated 24.03.2011 and on 07.06.2011 a letter was issued by the OL to the Directors of the company to remain present at the factory premise and to hand over charge of the assets of the company to the OL. However, in para 5 of the report, it is stated as under:
"5. On perusal of the minutes recorded by the officials of the Official Liquidator it is seen that the company was a running concern and production in the company was going on. It is further seen from the said minutes that one Shri Vijay Patel stated that they have uploaded one batch of chemical reaction and the process cannot be stopped in between. If stopped the same may cause some accident and therefore requested to complete chemical reaction and after completion of chemical reaction they will stop the machine and shall handover possession of assets of the company. The process may last upto 8.00 PM. Therefore, after completion of the process, the Officials of the Official Liquidator had taken possession of the assets of the company and have deployed two security guards per shift aggregating to six guards per day for safe guarding the assets of the company".
11. In the meanwhile, Company Application Nos.349, 350 and 351 of 2011 were filed to recall the order of winding up and by order dated 17.06.2011 this Court directed the OL to remove the seal and permit the company to function. In compliance thereof, the OL has taken action and in paras 7, 8 and 9 of the report, it is stated as under:
"7. In compliance of the order dated 17th June 2011, the Official Liquidator deputed its officials at the factory premises of the company situated at A-2/10, Phase-I, GIDC Vapi, Gujarat on 21st June 2011 for removing the seal applied by the officials of the Official Liquidator. The seals applied by the official s of the Official Liquidator were removed and the notice of winding-up order pasted by the Official Liquidator was removed from the factory premises of the company.
8. That, the Official Liquidator most respectfully submits that by an order dated 21.11.2011 passed by this Hon'ble Court in Company Application No.349 of 2011 with Company Application No.350 of 2011 and Company Application No. 351 of 2011, the applicant was granted permission to withdraw the application and also directed to take out appropriate proceedings in connection with the order dated 24.03.2011 and said applications were disposed off as withdrawn.
9. That, the Ex-Director of the Company preferred Company Application No.20, 21 and 22 of 2012 praying this Hon'ble Court to recall, review and set aside the winding-up order dated 24th March 2011 passed in Company Petition No.109 of 2010, in view of the settlement of dues of the Petitioner and also in view of the fact that, the company is going concerned".
12. Having heard learned advocates for the parties and considering the overall facts and circumstances of the case, it is not in dispute that the applicant company is running concerned and is managing affairs to the best of public interest. It is also not in dispute that the Company has already discharged the liabilities of the Original Petitioners and also when it is shown that, the Company is a viable unit and is a going concern discharging its liabilities in day to day business. Considering the submissions and documents as placed on record, I am inclined to set aside by recalling and reviewing the three orders all dated 24.3.2011 passed in Company Petition Nos. 109 of 2010, 110 of 2010 and 111 of 2010. The prayers as prayed in the Judge's Summons are allowed and the orders dated 24.3.2011 passed in Company Petition Nos. 109 of 2010, 110 of 2010 and 111 of 2010 are set aside and recalled.
13. The applicant is directed to deposit an amount of Rs.15,000/- with the office of the Official Liquidator towards expenses incurred by the Official Liquidator in deploying the security guards for safeguarding the assets of the company and other miscellaneous expenses.
Accordingly, all these applications are disposed of.
[Anant S. Dave, J.] *pvv Top