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1989 DIGILAW 283 (KAR)

CHURCH OF SOUTH INDIA TRUST ASSOCIATION v. WRAPAIDS LIMITED

1989-08-18

M.P.CHANDRAKANTARAJ

body1989
CHANDRAKANTHARAJ, J. ( 1 ) THIS application is made in Company petition No. 68 of 1987 seeking an order of this Court directing the respondent/company whose winding up is sought in the company petition to hand over possession of the premises which belongs to the applicant as the landlord in that the premises shall be in the custody of the applicant till the company petition is disposed of one way or the other. It is submitted that the proceedings for eviction initiated also have been stayed in terms of Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985 (hereinafter referred to as the Act ). This court has already passed an order adjourning Company Petition No. 68 of 1987 sine die in terms of Section 22 of the Act. The language employed in sub-section (1) of Section 22 of the Act emphatically prevents this court from proceeding to order winding up of the company unless the winding up order has already been made which is saved under section 31 of the Act. Therefore, if the court's jurisdiction to proceed with the winding up petition is suspended for the period specified under the provisions of the act, this Court does not derive any power from any other source to give incidental relief which will have the effect of nullifying the provisions contained in Section 22 of the act. In other words, what is prohibited to be done directly by this Court cannot be done indirectly. ( 2 ) LEARNED counsel for the applicant, however, contended that Section 443 of the companies Act empowers the Court to adjourn the winding up petition on such conditions as it may impose and, therefore, in exercise of that power this Court may modify the earlier order adjourning the company petition sine die subject to the condition that the premises is handed over to applicant/landlord. In other words, during the pendency of the company petition the landlord wants to be a receiver which is expressly prohibited to be done by the court under Section 22 (1) of the Act. The non- obstante clause employed in sub-section (1) of Section 22 of the Act makes it imperative that Section 443 of the Companies Act is not available to the Court. The non- obstante clause employed in sub-section (1) of Section 22 of the Act makes it imperative that Section 443 of the Companies Act is not available to the Court. ( 3 ) LEARNED counsel for the applicant submitted that there is a decision of the supreme Court to the contrary on identical set of facts. But, he was unable to give the citation nor any reference to such citation. He prayed for an adjournment on that ground. The motion for adjournment is rejected as the matter has been heard at length for some time. ( 4 ) IN that view of the matter, this application is mis-conceived and it is rejected. --- *** --- .