JUDGMENT : K.M. Thaker, J. The applicant has taken out the present proceedings seeking below mentioned relief(s) : "(a) That the order dated August 27, 2004 passed in Company Petition No. 2 of 2004 winding up M/s. Alang Industrial Gases Limited be recalled or be permanently stayed. (b) That pending the hearing and final disposal of this company application and subject to the Hon'ble court ultimately recalling or permanently staying the winding up order dated August 27, 2004 passed in Company Petition No. 2 of 2004 the applicant may be permitted to make an application to the Bombay Stock Exchange for removing/revoking suspension of the company." 2. The applicant is an ex-director and shareholder of the company named M/s. Alang Industrial Gases Limited (in liquidation). 3. It appears from the record that somewhere in 2004, the present respondent No. 2 had filed a winding up petition being Company Petition No. 2 of 2004 against the company alleging, inter alia, that the company was unable to pay its debts when it became due and payable. 4. After considering the case of the petitioner and the defence made out by the company, the court passed winding up order dated August 27, 2004. 5. Therefore, the applicant filed the statement of affairs and also gave his statement under rule 130, as required by law. 6. The applicant has come out with a case that after the winding up order was passed on the ground that the company is unable to pay the dues of its creditors, the applicant, over a period of time, entered into negotiations with various creditors (including the present respondent No. 2) of the company for settling their claims. It is also claimed that one after another, the company could settle/clear dues of all the creditors except one of its creditors viz., M/s. Arun Machineries and Dyes Private Limited, who, at the relevant time, had a claim in the sum of Rs.2,11,506 as unsecured creditor. 7. It is expressly asserted by the applicant that except the claim of one creditor, the claims of all creditors, including the present respondent No. 2 (i.e. the petitioning-creditor) have been paid or settled by the company. It is also asserted by the applicant that he is ready and willing to pay the said creditor, viz., M/s. Arun Machineries and Dyes Private Limited or to deposit its claim amount with the court. It is also asserted by the applicant that he is ready and willing to pay the said creditor, viz., M/s. Arun Machineries and Dyes Private Limited or to deposit its claim amount with the court. A list of secured and unsecured creditors as on the date of winding up order, is given at paragraph 2, page 6 of the application, which contains 8 names of the creditors, including respondent No. 2 and it is claimed that except the creditors whose details are mentioned in the list the company had no secured or unsecured creditors. This statement also contains the details about the amounts due to the said secured/unsecured creditors. 8. In support of the application, the applicant has, in paragraph 3 averred that : "The company was wound up because at the relevant time the company and its promoters were passing through severe financial difficulties and could not pay its creditors. However, after the company was wound up, the applicant, as the ex-director and major shareholder of the company negotiated with the creditors and has been able to settle the dues of all but one of the creditors of the company and the claims of the Income-tax Department. Of the above listed creditors in paragraph 2, except the one listed at Sr. No.4, M/s. Arun Machineries and Dyes Pvt. Ltd., the applicant has settled with/paid off all other creditors who have issued their respective no dues certificate. . ." 9. So far as one unsecured creditor, whose dues remain unpaid, learned counsel for the applicant has submitted that the company has certain disputes with the said unsecured creditor, however, notwithstanding the said dispute the applicant is ready to deposit the entire amount in the registry of the court. 10. It appears that apart from the secured/unsecured creditors, whose details are mentioned in the list in paragraph 2 at page 6 of this application the company has liability of one statutory creditor as well as e.g. the Income-tax Department. In that context, the applicant has stated in the application that he is in the process of negotiating with the authorities for settlement under the provisions of the Income-tax Act, 1961. 11. The applicant has averred and clarified that the company does not have any immovable or movable properties. It is also submitted that there are no existing or unpaid workmen and any dues of any workmen are not out-standing. 12. 11. The applicant has averred and clarified that the company does not have any immovable or movable properties. It is also submitted that there are no existing or unpaid workmen and any dues of any workmen are not out-standing. 12. In the backdrop of such facts, the applicant has also averred in the application that : ". . . The applicant submits that while incorporating the company, the promoters had a very viable project. However, on account of the paucity of liquidity, the project could not take off. It is submitted that in the changed economic scenario in the country and rapidly developing Indian economy, the said project and/or other projects can be started and the company can be revived . . ." 13. It transpires from the record that prior to winding up, the company was listed with the Bombay Stock Exchange. However, as of now, it has been suspended. In this regard it is also averred by the applicant that : ". . . Since a very large sum was spent in incorporating the company by way of stamp fees and registration charges, in order to take the advantage of the said expenses already incurred, the applicant proposes to revive the company. As stated above the applicant has already paid off all but one of the creditors of the company and the Income-tax Department and is quite hopeful that he will be able to settle with the Income-tax Department and will be able to pay it off more particularly because the claims of the Income-tax Department include a very huge portion by way of interest charges which the Department can be persuaded to waive." 14. The applicant presented the application before the court with the above noted request, on or around May 10, 2011. After considering the application, the court by way of interim arrangement, permitted the applicant to make the application to the Bombay Stock Exchange for removing/revoking suspension of the company. 15. Mr. Shah, the learned advocate has appeared for the applicant, and submitted that the court has power to recall the order of winding up. He submitted that in exercise of inherent jurisdiction, the court can certainly make such order. In aid of his contention that the court has inherent jurisdiction, Mr. Shah relied on the provisions contained under rule 9 of the Companies (Court) Rules, 1959. Mr. He submitted that in exercise of inherent jurisdiction, the court can certainly make such order. In aid of his contention that the court has inherent jurisdiction, Mr. Shah relied on the provisions contained under rule 9 of the Companies (Court) Rules, 1959. Mr. Shah submitted that the applicant has approached the court, after having settled the claims of all (except one) secured and unsecured creditor, which establishes the bona fides of the applicant. It is also submitted that except the 8 secured/unsecured creditors whose details are mentioned in the application and the statutory creditor, viz., the Income-tax Department, the company did not have and does not have any other creditor. He also submitted that if the request of the applicant is accepted, he is ready and willing to publish advertisement giving details of the order passed by the court so that any other creditor, who has inadvertently remained unpaid and has any claim, may approach the court and appropriate directions can be passed. 16. Mr. Mehta, the learned advocate has appeared for respondent No. 2, i.e., petitioning-creditor and declared that the claim of respondent No. 2 (petitioning-creditor of above referred Company Petition No. 2 of 2004) are fully and finally settled and now there are no dues of respondent No. 2 against the company and respondent No. 2 has no objection if the application is granted. 17. Mr. Yadav, the learned advocate has appeared for the official liquidator. Mr. Yadav has referred to the report dated July 21, 2011. He, inter alia, submitted that without proper scheme the order recalling winding up need not be passed. He submitted that the order can be passed under section 391 of the Act, hence, such order cannot be passed under rule 9. Mr. Yadav also submitted that assuming that the provision under the Rules, particularly rule 9 of the Companies (Court) Rules confer power on the court to recall the order of winding up, then also, the court may do so after requiring the applicant to issue advertisement. He has extensively referred to and relied on the report dated July 21, 2011. Mr. Yadav also submitted that assuming that the provision under the Rules, particularly rule 9 of the Companies (Court) Rules confer power on the court to recall the order of winding up, then also, the court may do so after requiring the applicant to issue advertisement. He has extensively referred to and relied on the report dated July 21, 2011. He also expressed apprehension that after revival the applicant may sell-off the name or registration of the company or may adopt some measures to make profit and deprive the shareholders of the company and that the applicant may be required to issue advertisement before the order of recall (of winding up order) is granted in his favour. 18. I have heard the submissions of learned counsel for the applicant and respondents Nos. 1 and 2. 19. As noticed earlier, the company was ordered to be wound up by order dated August 27, 2004 passed in Company Petition No. 2 of 2004 preferred by the present respondent No. 2 on the ground that it was unable to pay its dues and discharge its financial obligations. The said order is to be found at page 12 (Annexure A) of the present application. The court, after considering the submissions of the petitioner-creditor and the company observed in paragraph 6 of the order that: "6. Having heard the learned advocate appearing for the petitioner and having gone through the memo of petition and other documentary evidence which are produced along with this petition, the court is of the view that the company has lost its financial substratum and the company is not in a position to discharge its liabilities . . ." 20. However, now the applicant has, placed on record of the present application, no due certificates issued from the two secured creditors Samata Sahakari Bank Ltd., Valchandnagar Sahakari Bank Ltd., Tricon Share and Stock Broker Pvt. Ltd., and other creditors Hartron Network and Space Corporation Ltd. in support of the submission and assertion that except one unsecured creditor and one statutory creditor (Income-tax Department) it has no debt and it does not have any other creditor. 21. The said submissions by the applicant are not denied or disputed by the official liquidator. 22. The issue, which arises, in connection with the relief prayed for by the applicant is about the court's power to recall the order of winding up. 23. 21. The said submissions by the applicant are not denied or disputed by the official liquidator. 22. The issue, which arises, in connection with the relief prayed for by the applicant is about the court's power to recall the order of winding up. 23. Learned counsel for the applicant has submitted that the applicant has invoked inherent jurisdiction of this court to seek the relief. 24. However, since the petitioner has also prayed (though alternatively) for permanent stay of winding up order, it is necessary to also take into account the provisions contained under section 466 of the Act, as well, which reads thus: "466. Power of Tribunal to stay winding up. (1) The Tribunal may at any time after making a winding up order, on the application either of the official liquidator or of any creditor or contributory, and on proof to the satisfaction of the Tribunal that all proceedings in relation to the winding up ought to be stayed, make an order staying the proceedings, either altogether or for a limited time, on such terms and conditions as the Tribunal thinks fit. (2) On any application under this section, the Tribunal may, before making an order, require the official liquidator to furnish to the Tribunal a report with respect to any facts or matters which are in his opinion relevant to the application." 25. The said section, essentially confers on the court, power to stay, either altogether or for limited time, the proceedings in relation to winding up. The words "either altogether" also indicate that the court can stay the proceeding related to winding up, on long-term basis. 26. The said provision requires that before any order is made on the application, the official liquidator shall be asked to furnish report with respect to the facts or matters relevant to the application. 27. In the present case, the official liquidator has, as noted above, filed his report dated July 21, 2011. The report does not contain any remark or observation adverse to the petitioner or against the relief prayed for or contrary to what is submitted and asserted by the applicant. 28. 27. In the present case, the official liquidator has, as noted above, filed his report dated July 21, 2011. The report does not contain any remark or observation adverse to the petitioner or against the relief prayed for or contrary to what is submitted and asserted by the applicant. 28. At this stage it is pertinent to note that the applicant's submission and assertion that the company has no assets and/or no funds, and no claim from workers and/or any other creditor (i.e. other than the original petitioning-creditor who is present opponent No. 2) and during the last about seven years any creditor-claimant has not come forward raising any claim and/or any petition or any application has not been filed, is not disputed or denied by the official liquidator. 29. In view of the facts summarised in the present order coupled with the fact that the applicant has settled/paid the dues of the creditors (except one), it can be said that the applicant has made out sufficient case for/in support of his request for an order staying the winding up proceedings more particularly in the light of the fact that during the last about seven years the official liquidator has not taken and/or has not been able to take possession of any property or assets of the company. The official liquidator has not been able to give details of any properties or assets of the company, from the details available in the company's record and/or on scrutiny of the company's books of account and other records. At the same time the official liquidator has not even disputed or denied the applicant's assertion in the statement of affairs filed under section 454 of the Act or in the statement given under rule 130 or in the assertions in the present application. The official liquidator has also not disposed of any property and realised any amount nor taken out any proceedings to claim possession of any property nor received (or even invited) any claim. Besides this, the official liquidator has for all these years not taken out any proceedings including the proceedings for dissolution though the official liquidator has no properties and/or any funds of the company, in his hands. Thus, it can be said that in these facts, the applicant has made out a case for stay of the proceedings, more so when he seeks to revive the company. 30. Thus, it can be said that in these facts, the applicant has made out a case for stay of the proceedings, more so when he seeks to revive the company. 30. The applicant has, in this background, also prayed for revival of the company and for that purpose he has requested for recalling the winding up order. 31. Now, therefore, at the first instance it is necessary to examine as to whether the court has the power to recall the winding up order and then to decide whether the applicant has made out sufficient case for further main relief (i.e. for recalling the winding up order) or not. 32. On the issue of power (or provision conferring power) to recall order of winding up, and with reference to his prayer for recalling the order, the applicant has placed reliance on the provision under rule 9 of the Rules of 1959 and claimed that the application is taken out by invoking provision under rules 6 and 9 with a request that the court, after considering the facts of the case, and upon being satisfied, may pass appropriate order recalling the order of winding up of the company. It is the case of the applicant that under the said provisions the court has the power to recall winding up order. 33. It is necessary to note that the said Rules of 1959 are framed by the apex court, after consulting the High Courts, in exercise of the powers under section 643(1) and (2) of the Act. Under rule 2(4), the definition of the term "Code" is given according to which, "Code" means "the Code of Civil Procedure, 1908". The provisions under rules 6 and 9 of the Rules of 1959 reads thus : "6. Practice and procedure of the court and provisions of the Code to apply. Save as provided by the Act or by these rules the practice and procedure of the court and the provisions of the Code so far as applicable, shall apply to all proceedings under the Act and these rules. The Registrar may decline to accept any document which is presented otherwise than in accordance with these rules or the practice and procedure of the court. 9. Inherent powers of court. The Registrar may decline to accept any document which is presented otherwise than in accordance with these rules or the practice and procedure of the court. 9. Inherent powers of court. Nothing in these rules shall be deemed to limit or otherwise affect the inherent powers of the court to give such directions or pass such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court." 34. In view of the provision under the said rule 6 of the Rules, the power available under section 151 of the Code would be available to the court. A conjoint reading of the provisions under rules 6 and 9 of the Rules bring out the position that the court has the power and, will have the freedom and authority to call in aid the provisions under section 151 of the "Code" and the combined strength, i.e., the power under rule 9, rule 6 and section 151 of the Civil Procedure Code, 1908 will empower the court, to pass appropriate order including an order recalling the court's own (earlier) order, as equity may demand and as may be necessary for the ends of justice. 35. As such the scheme of the Act does not contain any specific and direct provision expressly conferring power on the court to recall simplicitor (i.e. without requiring the applicant to observe and comply with any procedure or condition) the order of winding up, so as to illustrate this aspect, reference can be made to sections 391 to 394 of the Act. The said provisions do empower the court to pass an order of such nature and effect but they also lay down, in detail, the procedure which an applicant would be obliged to follow. Therefore, the question, which arises is that in exercise of inherent and special power, whether the court can pass an order in the nature of and having effect of recalling the order of winding up. 36. Therefore, the question, which arises is that in exercise of inherent and special power, whether the court can pass an order in the nature of and having effect of recalling the order of winding up. 36. In this context it is appropriate to take note of the observations made by the apex court in the decision in the case between Sudarsan Chits (I.) Ltd. v. Sukumaran Pillai, AIR 1984 SC 1579 , wherein the apex court, while dealing with the issue raised with reference to the provision under section 446 of the Act observed in paragraphs 13 and 14 that (page 641) : "However, the narrow question which is required to be considered in this appeal is : whether the winding up proceedings were pending or had come to an end when the Appellate Bench froze the winding up order by keeping it in abeyance ? Let it be made at once clear that the winding up order made by the learned company judge in respect of the appellant-company, has neither been quashed, set aside, can celled, revoked nor recalled. On the contrary after directing that the winding up order shall be held in abeyance, the Appellate Bench directed that the official liquidator shall continue to act as provisional liquidator as provided by section 450 and that itself is a stage in the winding up proceedings. When the winding up order is kept in abeyance it is in a state of suspended animation. The fact that the Appellate Bench directed that pending implementation of the scheme as sanctioned by the High Court, the winding up order will be kept in abeyance itself without anything more shows that the order was neither cancelled nor recalled nor revoked or set aside. It continued to exist but was inoperative. Any default on the part of the company in carrying out its obligation under the scheme by itself without any thing more would revive the winding up order. Therefore, the winding up order was effectively subsisting but inoperative for the time being, having all the potentiality of being rejuvenated or being brought back to life. Any default on the part of the company in carrying out its obligation under the scheme by itself without any thing more would revive the winding up order. Therefore, the winding up order was effectively subsisting but inoperative for the time being, having all the potentiality of being rejuvenated or being brought back to life. Now, if the winding up order was merely held in abeyance, i.e., if it was not operative for the time being, but had not ceased to exist, the winding up proceedings are in fact pending and the court which made the winding up order would be the court which is winding up the company. It is now well-settled that a winding up order once made can be revoked or recalled but till it is revoked or recalled, it continues to subsist. That is the situation in this case. If the winding up order is subsisting, the court which made that order or the court which kept it in abeyance will have jurisdiction to give necessary directions to the provisional liquidator to take recourse to section 446(2)." (emphasis supplied) 37. Mr. Shah, the learned advocate for the applicant has also relied on the decision of the High Court of Karnataka in the case between G.T. Swamy v. Goodluck Agencies (1990) 69 Comp Cas 819 wherein the court has actually relied on the above referred decision of the apex court in the case of Sudarsan Chits (I.) Ltd. v. Sukumaran Pillai, AIR 1984 SC 1579 ; (1985) 58 Comp Cas 633 and observed that in the light of rules 6 and 9 the court has the power to recall winding up order so that the court may not find short-fall in the requisite power to make appropriate order, including the power to recall own order (e.g. in the event the court is satisfied with the cited reasons and justification in support of the request for permission to revive the company and for order recalling the winding up order) such special powers, in addition to the powers conferred on court by virtue of section 391 to section 394 and section 466 appear to have been conferred on the court. 38. 38. On a conjoint reading of the provisions under section 466 and rules 6 and 9 under the Companies Act and the Rule of 1959 and section 151 of the Civil Procedure Code it emerges that in light of the combined strength of the said provisions it cannot be said that the court is completely powerless to pass order in the nature of, or an order having effect of, recalling the order of winding up and that the court cannot, in any event or for any reason, recall the winding up order. The said provisions conjointly empower the court to pass, after being satisfied on all relevant aspects, an appropriate order including an order recalling its own order if the facts so demand and justify. The power to recall "an order" would include the order of winding up. 39. Exercise of inherent jurisdiction is within the discretion of the court, and exercise of discretionary power demands higher degree of care, caution and circumspection. The said inherent powers can be exercised to pass order which may be necessary for "ends of justice" or to "prevent abuse of process of court". 40. 39. Exercise of inherent jurisdiction is within the discretion of the court, and exercise of discretionary power demands higher degree of care, caution and circumspection. The said inherent powers can be exercised to pass order which may be necessary for "ends of justice" or to "prevent abuse of process of court". 40. When an application seeking such order in exercise of the power under rule 9 read with rule 6 of the Rules of 1959 read with section 466 of the Act and section 151 of the Code is preferred, then before passing an order recalling the own order, it would be necessary for the court to examine and address below mentioned aspects and an applicant shall have to satisfy the court, inter alia, on the following aspects : (a) that, such revival would be in the interest of the company, and the creditors and also the members ; (b) that, the request is not a ruse or a facade for siphoning of the assets and/or funds of the company ; (c) that, it will not be prejudicial to public interest ; (d) that, there are strong and sustainable chances for resurrection and survival of company ; (e) that, the applicant and/or the company will be and are in a position to mobilise funds and resources for reviving the company ; (f) that, the creditor/s (if any) and the members are in favour of and are supporting the request for revival of the company ; (g) above all, a module and working plan for resurrection of the company is ready ; (h) that, the order of winding up was not passed on the ground of misfeasance and/or on the ground of allegations against the directors/management ; (i) the applicant to satisfy the court on the count that the request is genuine and bona fide and deserves to be accepted. 41. On demonstration of, and on satisfying the court on, such aspects the applicant may claim that the winding up order deserves to be/may be recalled, in the interest of equity. 42. 41. On demonstration of, and on satisfying the court on, such aspects the applicant may claim that the winding up order deserves to be/may be recalled, in the interest of equity. 42. However, before actually recalling a winding order the court has also to be cautious and has to ensure that the said special and inherent power may not be used as a short-cut and/or to avoid the prescribed procedure (e.g. the procedure prescribed under sections 391 to 394 of the Act) for granting a particular relief inasmuch as the scheme of the Act also contains sections 391 to 394 on the strength of which a scheme or an arrangement which may include proposal for revival of the company, can be submitted for approval and sanction by the court on compliance of the prescribed procedure. 43. Learned counsel for the applicant has, however opted for order under rules 6 and 9 of the Rules of 1959 and on the abovementioned observation by the apex court in the decision in the case of Sudarsan Chits (I.) Ltd. v. Sukumaran Pillai, AIR 1984 SC 1579 ; (1985) 58 Comp Cas 633, and prayed for recalling the winding up order with a direction to publish the order and has submitted that in view of the publication of order, another advertisement about the application may not be necessary. 44. When the request of the applicant is examined in the light of the provisions under sections 391 to 394 of the Act it emerges that the said sections 391 to 394 of the Act, inter alia, provide the procedure to facilitate reconstruction and amalgamation of the companies and the procedure to make arrangement with the creditors and members. The provision under section 391 does contemplate submission, by way of application, (either by the company or any creditor or any member of the company or by the liquidator in the case where the company which has been ordered to be wound up) of a scheme or arrangement etc. which would include a scheme proposing revival of a company for consideration, and appropriate orders by the court. In such an application a request for recall of winding up order for the purpose of revival of a company can be made. In such cases, the court would follow the procedure prescribed under the said section and relevant rules. which would include a scheme proposing revival of a company for consideration, and appropriate orders by the court. In such an application a request for recall of winding up order for the purpose of revival of a company can be made. In such cases, the court would follow the procedure prescribed under the said section and relevant rules. The court, on such application by any creditor or member of the company or, in the case of a company which is being wound up, by the liquidator, would order a meeting of the creditors or class of creditors, or of the members, or class of members, as the case may be, to be convened and conducted in such manner as the court directs. If the majority in number representing three-fourths in value of the creditors, or class of creditors, or members, or class of members as the case may be present and voting either in person or, where proxies are allowed then by proxy, agree to the compromise or arrangement or the scheme for revival, the court upon being satisfied, after due consideration, scrutiny and evaluation of the scheme, sanction the scheme or compromise or arrangement and in that event such scheme or compromise or arrangement shall, upon being sanctioned by the court, be binding on all the creditors or all the creditors of the class, all the members, or all the members of the class, as the case may be. So as to pave the way for implementation of the scheme, the court may recall the order of winding up, or initially stay the proceedings of winding up and then recall the order of winding up. Sub-section (6) of section 391 provides, inter alia, that when such application is made, the court may consider the request to stay the commencement or continuation of any suit or proceeding against the company. The need for initially staying the proceedings would, mainly arise, when the creditors express diverse or opposing views, or the official liquidator raises objection which the company (or the applicant) may have to address and resolve. The order that may be passed by the court would, then, be binding to all the creditors and members, even if any creditor or member had any objection against the scheme. 45. The order that may be passed by the court would, then, be binding to all the creditors and members, even if any creditor or member had any objection against the scheme. 45. In the present case, the applicant has come forward claiming that the order of winding up may be recalled or may be permanently stayed, which will help in revival of the company. In support of the request, the applicant has also submitted that all creditors, except one, have paid their dues and the company has no assets. The applicant has not submitted any scheme, but that appears to be in view of the fact that there are no creditors (according to the applicant and not denied by the official liquidator) of the company, hence there is no scope or need to offer any options, and since there are no movable or immovable assets (according to the applicant and not denied by the official liquidator) there is no scope or occasion to make provision for applications of assets. The attempt of the applicant is to claim that any procedure qua the creditors or members is not necessary. 46. On the other hand the learned advocate for the official liquidator submitted that though in exercise of the provision under rule 9 the order of winding up, can be recalled notice giving intimation about the present petition to the creditors and shareholders may be issued. 47. In this context the learned advocate for the applicant would submit that in the facts of the case on hand such notice would not be necessary. The learned advocate also submitted that the petitioner would publish substance and gist of the order that may be passed by the court and also incorporate, in the advertisement, intimation to the creditors and the workers that they may submit their respective claims, if there are any and that he (i.e. the applicant) shall also file an undertaking that he shall pay/discharge all the claims, which may be admissible and sustainable in law. 48. On the strength of the peculiar facts of the present case it is also submitted that the facts of the case do not warrant and do not demand that the entire procedure, with complete details, as contemplated under section 391 of the Act for arrangement or compromise or for reconstruction should be or needs to be followed. 49. 48. On the strength of the peculiar facts of the present case it is also submitted that the facts of the case do not warrant and do not demand that the entire procedure, with complete details, as contemplated under section 391 of the Act for arrangement or compromise or for reconstruction should be or needs to be followed. 49. Ordinarily, it would be necessary and in the interest of all concerned, i.e., the company, creditors, shareholders etc. that such course of action is followed in cases where request for recalling the order of winding up (which would result into revival of company) is made by the company in liquidation and the court also would, ordinarily follow such course. 50. One of the main purposes which can be addressed and served by such course of action would be to get the scheme or the offer of the company (or the contributory or the creditor) evaluated by the members and the creditors who may, after analysing the scheme, decide whether it is in their interest or it is prejudicial to their interest. The members and the creditors are the best judges of their interest. 51. Another purpose which could be addressed and served by such course of action is that it makes it possible to find out, ascertain and ensure that the object or the effect of the proposed action and request for recall of the winding up order is not to deprive the creditors of the company of the assets of the company, i.e., from realising their debt by disposing the assets/properties of the company since if the winding up order is recalled the assets and properties of the company would be released from the charge and custody of the official liquidator and then they would not be available (with the official liquidator) for clearing the dues of the creditors and workers by selling the properties. 52. 52. In view of such probabilities, even though the court may be satisfied, and therefore inclined to entertain a petition preferred by invoking rule 9 read with rule 6 of the Rules of 1959 and section 151 of the Code, the court would, however, prefer to follow the procedure prescribed under section 391, particularly the procedure to invite the opinion and wish of the creditors and shareholders, before making an order recalling the order of winding up which, consequently, may pave the way for revival of company in liquidation. 53. Furthermore, it would also be appropriate and in consonance with the scheme of the Act and the intention of the Legislature to follow the procedure as contemplated under section 391 of the Act inasmuch as in view of the scheme of the Act, an order of winding up is an order in rem and is available to all the creditors, secured and unsecured. Therefore, it is always appropriate to inform the creditors (and also the members) about the application-proceedings seeking recall of winding up order. On the other hand, the shareholders always have stake in all the decisions related to the company. Thus, if such application, when presented in the court, is not supported by and is not accompanied by the members' resolution, then the court would always prefer to and want to invite, and consider, their views and decisions or ask the applicant to place on record, the members' resolution. 54. True it is that there could be cases with the facts and circumstances which would demonstrate before the court, and satisfy the court as to the fact, that calling of meeting, advertising the schedule of meeting, undergoing the process of resolution etc. can be, without adversely affecting or jeopardising the interests of creditors dispensed with ; as an exercise with no practical purpose. 55. According to the applicant's submissions the present case is such a case since there is no secured creditor who might have any objection against the request and that there would not be any unsecured creditor/s also who would have any objection against his request. The applicant would make similar submission and request with reference to the members as well. 56. In this context it would be appropriate to find out and understand the intention of the Legislature. On closer examination of sections 391 to 394 the intension of the Legislature becomes clear. The applicant would make similar submission and request with reference to the members as well. 56. In this context it would be appropriate to find out and understand the intention of the Legislature. On closer examination of sections 391 to 394 the intension of the Legislature becomes clear. The said provisions indicate that the Legislature's intention is to provide opportunity to the company to make all efforts for survival of the company and/or to resurrect the company either through its own efforts or by way of a scheme which would receive support from the creditors or contributories. The provision under sub-section (6) of section 391 and section 466 also bring in focus similar intension of the Legislature which are in aid of proceedings taken out with such object. 57. The interest of the creditors and shareholders and the public interest are paramount and if the court is satisfied that the request/attempt is bona fide and genuine and is not prejudicial to the public interest and is not prejudicial to the interest of creditors and shareholders, and if it sub-serves their interest the court may consider the request but of course only after following the prescribed procedure. 58. The question, thus, is about the mode and method. 59. The provision under section 391 prescribes the procedure for such purpose. Thus, when the revival of the company is sought then although the court, upon being completely satisfied on all counts and in all respect can pass order, in exercise of inherent powers, if the facts so demand and justify, recalling the order of winding up and the consequential revival will become and remain binding to all creditor and shareholders only if the application-scheme is presented under section 391 and/or 394 and the court's order recalling the winding up order is passed after following the procedure prescribed under sections 391 to 394. 60. So as to make the scheme or arrangement binding on all creditors and members etc. including the objecting creditors and shareholder, the Legislature has prescribed procedure under sections 391 to 394 and diligent compliance thereof can make it binding to all because by virtue of the specific and express provision contained under sections 391 to 394 the scheme-arrangement are given binding effect even qua the creditors and shareholders who are against the scheme or arrangement and have opposed and/or are opposing the scheme or arrangement. Thus, the binding effect and character would get attached to the order and the scheme if the order is passed under section 391 or 394 and after following the prescribed procedure under sections 391 to 394. 61. Furthermore, by virtue of the provision under section 447 of the Act the order of winding up operates in favour of all creditors and members. Thus when the court passes order of winding up of the company, it is applicable and available for all creditors. Differently put, it is an order in rem. If the order recalling the winding up order is passed except under section 391 and without following the prescribed procedure then the winding up order would stand recalled (i.e. it would amount to recalling the winding up order) without considering the views and wish of creditors and shareholders. 62. It appears that so as to avoid mainly two consequences viz. (a) that any scheme or arrangement which is not subjected to their (i.e. creditors' and shareholders') scrutiny and which is not examined, analysed and approved by them may not be thrust upon them ; and that (b) the scheme or arrangement which, after scrutiny and analysis, is approved by three fourths majority may not be frustrated by minority objection, that the Legislature has prescribed the procedure under section 391. The said provision obliges the court to take into account the objection, if any. It is the duty of the court to protect the interest of the shareholders and creditors. 63. Thus, if in a given case, the court finds it appropriate to recall such order, then the court would, ordinarily and unless there are special or peculiar facts and/or circumstances justifying different course of action pass the order after considering/ascertaining their opinion, i.e., the consent or objection of the shareholders and creditors. 64. Now, if the present case is examined in the light of the foregoing discussion, then it emerges from the record that the applicant, on the ground that there are no creditors and/or assets of the company and that therefore there is no scope or possibility of any objection, wants to follow the alternate route, i.e., under rule 9 read with rule 6 of the Rules and section 151 of the Civil Procedure Code. 65. It also emerges that after the application was presented the report of the official liquidator was called for by the court. 66. 65. It also emerges that after the application was presented the report of the official liquidator was called for by the court. 66. The report of the official liquidator has been filed. The report does not contain any objection or contrary view or opinion/remark against the applicant. 67. The official liquidator has not denied or even disputed any of the submissions by or assertions of the applicant, particularly with regard to the creditors and/or assets and liabilities. 68. Even from other material (on record) also any objectionable feature or ground against the request for recalling the winding up order, is not brought to the notice of the court. 69. However, any objection from the creditors or shareholders does not appear to have been invited. 70. Furthermore, any steps to inform, either by advertisement or otherwise, the shareholders and/or to the creditors about the present proceedings, i.e., that such an application has been presented and they may put forward objections if any, also do not appear to have been taken. 71. Consequently, it has not come on record as to whether any creditors and/or any shareholders have any objection or not. 72. On the other hand, it is also true that in his report (submitted on record) the official liquidator has not disputed that the company has no assets or properties. 73. Actually, the official liquidator has also not claimed that there are any assets/properties or funds of the company or that he has in his possession any assets or properties or funds of the company or that to his information and/or as per the Registrar of Companies record the company has assets/properties and/or funds in its name/account. 74. The official liquidator has also not disputed the applicant's assertion that there are no secured creditors and that except one all claims of all unserved creditors have been paid/settled, and that the company has no assets and/or properties of any nature and it also does not have any funds except Rs.25,000 in its name or account. 75. The report of the official liquidator does not contain any serious or substantial objection against the request and/or denial of any assertion by the applicant. 76. In this backdrop, so as to consider and appreciate the submissions and request of the applicant, it is also necessary, and appropriate, to summarise and to take into account the aspects which emerge from the record. 76. In this backdrop, so as to consider and appreciate the submissions and request of the applicant, it is also necessary, and appropriate, to summarise and to take into account the aspects which emerge from the record. (a) The company (in-liquidation) does not have any tangiblemovable/immovable assets. Therefore, this does not appear as a case where the company and/or the applicant might be intending to exploit or profitably use, the assets and properties of the company and that without knowledge of or to the prejudice of the creditors/members. In his report the official liquidator has not even expressed such apprehension or doubt and the application is not opposed by the official liquidator on such ground. (b) The company also does not have any secured creditors. (c) Since the date on which the order of winding up was passed, the applicant has, over a period of time, made attempts to enter into negotiations with all the creditors and to arrive at settlement with the creditors and clear the dues of all the creditors. (d) It is also claimed that bona fides of the applicant did yield result and with all the creditors (including the original petitioner) except one viz., Arun Machineries and Dyes Pvt. Ltd., the applicant has arrived at a settlement and cleared/settled the dues of all the other creditors. The resultant situation, according to the applicant's case, is that except in case of one unsecured creditor, the dues of all the creditors are cleared/settled and as of now there are no creditors (except one) and/or any other outstanding dues. (e) So far as the creditor with whom settlement could not be arrived at is concerned, the applicant has shown readiness and has stipulated and assured that he shall deposit the claim amount in the court (in respect of which the court can subsequently pass appropriate order after hearing the said claimant/creditor and the official liquidator). (f) According to the applicant, the discussions with the statutory creditor, viz., Income-tax Department are in progress and are at advanced stage and there is possibility that the said claim also may be amicably settled. (f) According to the applicant, the discussions with the statutory creditor, viz., Income-tax Department are in progress and are at advanced stage and there is possibility that the said claim also may be amicably settled. (g) The applicant has submitted that he is ready and willing to file an undertaking in the court declaring, undertaking and stipulating that he shall pay/settle the legally enforceable/payable claims, if any, that may be raised by any erstwhile creditor/s. (h) According to the applicant, the reason for presenting, this application seeking order of recall, is to save the huge sum already spent on incorporating the company by way of stamp fee and registration charges and also to save additional cost/expense towards fees, on account of immediate increase of stock exchange. (i) At the time when the petition for winding up of the company was filed admitted, advertisement about admission and notifying the date for hearing of the petition was published, for hearing of petition and any other secured or unsecured creditors or other claimants had not approached the court to support the petition. (j) Almost 6 to 7 years have passed since the admission of the petition and publication of advertisement, however since then until now any other secured and/or unsecured creditors have not come with any claim and/or any other petition/application have not been filed. (k) So far as the original petitioner is concerned, it has been fully paid and, in response to the present application, the said original petitioner has appeared and submitted that it has no objection if the order is passed as prayed for and that it has already issued no due certificate in favour of the company. 77. The official liquidator has also placed on record the statement recorded by the office of the official liquidator under rule 130. In the said statement by the director of the company in liquidation, i.e., the present applicant, it is stated that the company does not have any assets or properties. 78. The details which came on record by way of the director's statement recorded under rule 130 reveal that the company proposed to set up oxygen manufacturing plant at Bhavnagar and that at the time when the winding up order was passed the company had not set up the factory building and plant and machinery and the company had not commenced production and that it has no godown and factory. It is also revealed that the size of public issue was approximately Rs.5.40 crores, however pursuant to the public issue the company did not receive full "call money" and that the promoters' contribution was approximately Rs.2 crores. 79. It is also pertinent that the official liquidator has not placed on record any material contrary to the details mentioned by the director in his statement under rule 130. 80. The official liquidator has neither expressed any apprehension nor suggested any possibility of misuse and/or misappropriation of assets/properties or funds of the company and has not demonstrated as to how the recall of winding up order and revival of the company will or can adversely hit and affect the interests of any creditors or members. Actually the official liquidator has not even claimed that there are any creditors and/or assets and funds. 81. If the aforesaid aspects are taken into account then on a conjoint reading and assessment of said facts and all aspects, it would become clear that any objectionable feature or reason against the request for revival of the company are not brought out and/or are not placed before the court. 82. It is necessary and appropriate to recall and appreciate that the above noted facts (paragraphs 14(a) to 14(k)) include certain peculiar and special facts and features viz.: (a) at the time when winding up order was passed in Company Petition No. 2 of 2004 (which was presented by the present respondent No. 2) advertisement about the presentation of winding up petition and its admission was published ; (b) however until now any claim by other creditors or the workman have not been received by the office of the official liquidator nor any claims-petition is filed in the court ; (c) it is claimed, and asserted by the applicant, and is not disputed by the official liquidator, that at the time of winding up order or even at the time of submission of this application the company did not have and even now it does not have assets, any funds (except Rs.25,000) and any creditor; (d) the petitioner stipulates that he will publish the gist and substance of the order and the directions by the court mentioned in the order. 83. 83. On strength of the above noted facts (in paragraphs 14(a) to (k) and 14.1 to 14.5 and 16) the applicant would submit that since he has opted for the alternate route, i.e., under rule 9 read with rule 6 of the Rules and section 466 of the Act and section 151 of the Civil Procedure Code, an advertisement or the recourse to the procedure under section 391 may not be necessary at this stage and in any case it will not serve any fruitful purpose particularly when there are no assets, no secured creditors, no unpaid unsecured creditors (except one) and when he (i.e., the petitioner) stipulates that he would publish the substance and gist of the order in the newspaper and in such advertisement intimation to submit claims, if any will also be published. 84. In this context it is also relevant and appropriate to take note of the provision contained under rule 24 of the Rules of 1959. The said provisions read thus : "24. Advertisement of petition.(1) Where any petition is required to be advertised, it shall, unless the judge otherwise orders, or these rules otherwise provide, be advertised not less than fourteen days before the date fixed for hearing, in one issue of the Official Gazette of the State or the Union Territory concerned, and in one issue each of a daily newspaper in the English language and a daily newspaper in the regional language circulating in the State or the Union Territory concerned, as may be fixed by the judge. (2) Except in the case of a petition to wind up a company the Judge may, if he thinks fit, dispense with any advertisement required by these rules." 85. The aforesaid provision contemplates and allows dispensation of advertisement. The court can exercise the said discretionary power, having regard to the facts of the case and justifiability of the request. 86. Since, according to the material available on record of this application and as per the submissions by the learned advocate of the applicant and the learned advocate of the official liquidator, there are no movable and/or immovable assets of the company and there are no secured or unsecured creditors (except one unsecured creditor) it appears that the question of the creditors being deprived any assets will not arise. 87. 87. Furthermore, since there are no movable or immovable assets of the company any question or any doubt about the intention of the applicant also would be eliminated because in the absence of any assets (being available for any purpose whatsoever) the possibility of any misuse or misapplication of the assets by the applicant also gets eliminated. 88. It also appears that even any fund (over and above the sum of Rs.25,000) is not available in the hands of the official liquidator and/or in the account of the company. 89. Besides this, since the company does not have (as claimed by the applicant and not denied by the official liquidator) any creditors there is no scope or need for offering any options and/or inviting views/objections regarding such options and also since there are no assets (as claimed by the applicant and not denied by the official liquidator) there is no scope or occasion to make provision for its application and also since the court would, in any case and even otherwise would not absolve the company and/or the applicant and/or the directors from any liability of any nature or of any period, there appears substance in the applicant's submission that the advertisement at this stage may not serve any fruitful or practical purpose, more so when appropriate conditions can certainly be prescribed by the court so as to protect the interests of the shareholders and creditors. 90. Thus, on overall appreciation of the facts and submissions it appears that in light of the claim of the applicant, which is not denied or disputed by the official liquidator, viz., that there are no unpaid secured creditors and/or any unsecured creditor except one specifically mentioned by the applicant (in which case the applicant is ready to deposit the amount in the court) and when any possibility of misuse or misappropriation of the funds or assets of the company is not suggested and/or apprehended and/or even alleged by the official liquidator, (probably because there are no assets, plants and machinery and/or creditor and/or funds in excess of Rs.25,000/-) the request of the applicant may be accepted ; but of course subject to certain strict conditions and its strict compliance and for that purpose appropriate conditions can be prescribed. The interest of the creditors and members can be protected by attaching appropriate conditions to the order recalling the order of winding up. The interest of the creditors and members can be protected by attaching appropriate conditions to the order recalling the order of winding up. Hence, it is directed that : (a) For the purpose of effective implementation of the present order the official liquidator attached to the court (nominated as the official liquidator for the purpose of winding up proceedings related to the company) will continue to act as the official liquidator/as an officer in charge on behalf of the court to protect the interests of creditors and members. (b) The applicant shall deposit the entire claim amount of the unsecured creditor, viz., M/s. Arun Machineries and Dyes Private Limited with the official liquidator attached to this court. The said amount shall be deposited within 4 days from the date of present order. (c) The applicant shall deposit further sum of Rs.3 lakhs with the official liquidator attached to this court so as to meet with any unknown or unsurfaced claim, particularly the claim by secured creditor (if any) or any workers or other unsecured creditors. The said amount shall remain with the official liquidator attached to this court for a period of three years from the date of deposit. The official liquidator shall invest the said amount in fixed deposit for a period of three years with nationalised bank within one week from the date of the order. (d) The applicant shall file an undertaking on affidavit declaring, stipulating and undertaking that he shall honour, discharge and pay any claim, which would be maintainable in law, against the company. (e) If the deposited amount falls short of the payable amount, then the applicant shall be liable to immediately (i.e. on demand by the official liquidator) make good the deficit and he shall immediately deposit the deficit amount otherwise in the event of default present order shall cease to operate, and court may also pass any other appropriate orders. (f) In the event any claim is not made within the said period of three years, or in the event even after clearing the claims any excess amount remains available with the official liquidator, the deposited amount or such excess amount, as the case may be, shall be returned to the company, with interest accrued thereon. (f) In the event any claim is not made within the said period of three years, or in the event even after clearing the claims any excess amount remains available with the official liquidator, the deposited amount or such excess amount, as the case may be, shall be returned to the company, with interest accrued thereon. (g) If, during the aforesaid period of three years any sustainable claim is received by the official liquidator attached to the court then the official liquidator will, clear such claim and make the payment and simultaneously give information to the company. The applicant and/or the company shall not have any objection and shall not object such payment. (h) The applicant shall publish, as per the draft which may be sup plied by the official liquidator, an advertisement within three days from the date of present order giving gist and substance of present order and intimation and information to all concerned persons including the creditors (secured creditor and unsecured creditor), shareholders, workman, etc., about the application preferred by the applicant and about present order. (i) Such advertisement shall be published in two leading daily news papers one in Gujarati language and another in English language viz., Gujarat Samachar and Times of India in all editions, i.e., Ahmedabad, Rajkot, Surat, Vadodara. The advertisement shall be published in the name of the official liquidator attached to this court. The advertisement shall contain all the conditions specified by the court in this order. The advertisement shall specifically also clarify that if there are any unpaid secured or unsecured creditors they may approach the court declaring such fact and seeking appropriate direction including payment towards their dues. (j) It is clarified and declared that the present order shall not absolve the company and/or the directors, in any manner, from any case/litigation/proceedings and shall also not absolve them from any liability and/or any obligations and/or the responsibilities and/or consequences of any of its/their actions/decisions/defaults/non-compliance etc. (j) It is clarified and declared that the present order shall not absolve the company and/or the directors, in any manner, from any case/litigation/proceedings and shall also not absolve them from any liability and/or any obligations and/or the responsibilities and/or consequences of any of its/their actions/decisions/defaults/non-compliance etc. and shall not result into absolving the company and/or its director, from any of the statutory and other liabilities and/or obligations and/or directions including any proceedings (civil and criminal) already filed or which may be filed and the present order shall also not result into terminating the cases/litigation/proceedings and/or into frustrating and/or negativing and/or denying or depriving any claim of any creditor, local authority, statutory authority, or shareholder, workmen or any statutory liability and the present order shall also not operate as any bar against any claim or any proceedings. (k) The applicant shall file an undertaking that he gives up his claim to recover any amount or outstanding claim and dues, from the company in any capacity and he or his heirs or his assignees shall have no claim or right or entitlement to recover any amount from the company, on its revival. (l) The official liquidator appointed as official liquidator in Company Petition No. 2 of 2004 shall inform the applicant about the expenses incurred until the date of order by the office of the official liquidator and the applicant shall make payment of appropriate amount to the official liquidator. The applicant shall also pay, the expenses for the advertisement to be published by the official liquidator, as per the present order. (m) If, pursuant to the present order and upon revival of the company and as result of present order any admissible claim is made by any creditor or shareholder or any person or any legal or statutory authority then such claim will not be denied by the applicant or the company, much less on the ground that it is of pre-winding up period or of period prior to the date of the present order and the assets of the company will be available and shall be made available for discharging the said claim and it will not be refuted also on the ground that asset/s have been acquired after the date of present order and/or after winding up order was passed. (n) Any creditor or claimant shall be entitled to lodge claim and move the court for the said purpose. The official liquidator attached to the court, who is authorised to act as officer in charge, shall be competent to receive the claim against the company and present order recalling the order of winding up will not stand in way or will not be cited against the presentation of such claim. (o) If such claims are paid by the official liquidator attached to the court, then the company or the successor or the assignees or the applicant shall have no objection. (p) The company, pursuant to the present order and within a period of 6 weeks from the date of this order, convene, in accordance with, and by following the procedure prescribed under the Act, extraordinary general meeting of all shareholders and seek ratification, of the applicant's action of requesting for order recalling the winding up order and revival of company, by way of appropriate resolution passed by at least three-fourths majority and thereby get ratified and approved the action of presentation of application seeking recall of winding up order and revival of company. After such a resolution is passed, the applicant-company shall, by appropriate application present such resolution before the court within two weeks from the date on which the resolution is passed. If the shareholders do not pass the resolution as aforesaid and do not ratify the action as aforesaid present order shall automatically cease to operate. A copy of such resolution shall simultaneously also be filed in the office of the Registrar of Companies and the official liquidator attached to the court. (q) If the resolution as aforesaid is not passed or it is not passed within the prescribed time or it is not filed in the office of the Registrar of Companies and/or the official liquidator it shall be the duty of the Registrar of Companies and/or the official liquidator attached to the court, as the case may be to bring the default to the notice of the court by filing appropriate application/report and on such application the court shall, upon being satisfied, pass order withdrawing or nullifying present order recalling the winding up order. (r) Until the said resolution is presented before the court the applicant and/or company shall not take any action or decision and/or shall not, directly and/or indirectly, make any commitment/enter into any transaction or deal and/or shall not take any action or decision including any action or decision incurring any liability or obligation and/or any decision or action with regard to the company or its assets or shall not take any action/decision and/or shall not make any commitment in respect of company's name and/or company's registration and/or its incorporation and/or its capital etc. without sanction-approval, by specific order of the court. Thereafter all decisions, actions, shall be taken in accordance with the requirements under the Act. (s) The company-applicant and the management/board shall honour all statutory-legal liabilities and present order will not earn any exemption of any nature whatsoever in any demand or in any proceedings and/or before any authority or court. 91. It is clarified, for removal of any doubt, that present order shall not be taken recourse to and/or shall not be cited for frustrating and/or for getting terminated any proceedings against the company and/or the applicant and/or the directors and/or officers of the company with regard to any action or any event/default etc. before the order of winding up, including the proceedings regarding misfeasance or default in discharging any statutory obligation prior to the date of winding up order. 92. Looking to the facts of the present case, particularly the facts that except one all creditors are paid their dues as per the assertion of the applicant and there are no assets of the company and during interregnum, i.e., from the date of presentation of Company Petition No. 2 of 2004 until now any claimant or creditor or workman have not come forward making any claim against the company and any assets of the company are not shown to be existing however subject to the strict and diligent compliance and observations of the aforesaid conditions and other connected and relevant, express and implied requirements prescribed by the Act, the winding up order dated August 27, 2004 passed in Company Petition No. 2 of 2004 is hereby recalled today. As a consequence the said Company Petition No. 2 of 2004 is ordered to be restored to file. As a consequence the said Company Petition No. 2 of 2004 is ordered to be restored to file. The learned advocate for the petitioning-creditor, i.e., the petitioner in Company Petition No. 2 of 2004 has requested for permission to withdraw the application in view of the fact that its dues have been paid and it has issued no due certificate in favour of the company. The request is accepted and granted today with clarification that the winding up order is withdrawn today however, it shall be subject to compliance of the earlier mentioned conditions and the clarification that the present order allowing the application would not absolve the company and or directors and or applicant from their legal and statutory liabilities and obligations arising on account of winding up proceedings. A copy of this order shall be placed and maintained on the record of Company Petition No. 2 of 2004. The applicant shall file a certified copy of this order with the Registrar of Companies/Regional Director and also with the official liquidator attached to this court. 93. The application is, thus, disposed of as allowed in terms of this order. Orders accordingly.

Dilip B. Sheth v. Official Liquidator of Alang Industrial Gases Ltd.