MOOL CHAND RASTOGI v. ALLODIAL CHEMICAL MANUFACTURING CO. P. LTD.
1987-02-17
A.BANERJI
body1987
DigiLaw.ai
A. BANERJI, J. ( 1 ) THIS is an application by the petitioner, Sri Mool Chand Rastogi, for recalling the order dated december 8, 1986, ordering the winding up of the company, M/s, Allodial Chemical Mfg, Co. Pvt. Ltd. The prayer further is that after the above order is recalled, the company petition may be allowed to be withdrawn in terms of the compromise agreement dated January 2, 1987. The prayer in this application is supported by Sri A. N. Mahajan, learned counsel for the respondent. ( 2 ) A perusal of the affidavit of Sri Mool Chand Rastogi and Sri Laxmi Shankar Trivedi discloses that after passing of the winding up order by this Honble court, the petitioner and the respondent have entered into a compromise agreement regarding payment of dues of the petitioner. The compromise agreement has been filed in the Court of the First Additional District Judge, Meerut, in Execution Case No. 35 of 1985, (Mool Chand Rastogi v. L. S. Trivedi) and the court has passed the order on August 20, 1987, in terms of the compromise agreement. The copies of the agreement and the order passed thereon are annexures 1 and 2 to the affidavit. ( 3 ) A perusal of the compromise application dated January J, 1987, does not show anywhere that any reference was made to the winding-up order passed by this court. Both the parties, it appears, concealed from the court at Meerut the fact that a winding up order has already been passed by this court. Once a winding up order has been passed in a case, it becomes effective forthwith and the properties and assets of the company are custodia legis and are placed with the official liquidator attached to the court. Consequently, thereafter, no one has any right to deal with the property of the company which has been ordered to be wound up. It appears that the compromise order was obtained from the Court of the First Additional District Judge, Meerut, without disclosing to that court the fact that a winding up order had already been passed in respect of the respondent company by this court. In this view of the matter, the compromise agreement arrived at by the parties and filed before the First Additional District Judge, Meerut, was ineffective and unenforceable.
In this view of the matter, the compromise agreement arrived at by the parties and filed before the First Additional District Judge, Meerut, was ineffective and unenforceable. ( 4 ) A perusal of the winding up petition shows that the parties had twice earlier decided to settle their dispute amicably but the agreement had not been honoured by the respondents. Thereupon, the petitioner filed a suit in the High Court of Delhi which had been decreed on July 15, 1981. The execution of that decree had been transferred to the court at Meerut. Apart from the proceeding in execution to realise the amount, the petitioner had also filed the present winding up petition. The above petition was disposed of on merits by an order dated Decembers, 1986. The petition was not contested by the respondent company or the other respondents. Neither was any counter-affidavit filed nor was any cause shown against the prayer made in the petition for winding up of the company. ( 5 ) IT may further be recalled that time was once obtained by learned counsel for the respondents to settle the matter amicably outside the court for which time had been granted, but nothing came out of it. It will thus be seen that the compromise application had been moved on January 1, 1987, before the Execution Court (First Additional District Judge, Meerut) after the winding up order had been passed and without disclosing the same in the compromise application or to the execution court. As a matter of fact, if this fact had been disclosed to the execution court, it would not have proceeded to pass any order on the compromise application. It is apparent, therefore, that the order on the compromise application has been obtained by concealing a material and relevant fact before the execution court. ( 6 ) HAVING given the matter the consideration it deserves, I am clearly of the view that no case has been made out for recalling the order passed for winding up of the respondent company. The order on the compromise application was obtained without disclosing a relevant fact to the execution court and the order is ineffective after the passing of the winding up order for the reasons indicated earlier in this order. This application must, therefore, fail and is accordingly dismissed. .