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Piller Germany Gmbh & Co. Kg vs Pci Ltd on 9 December, 2020

Author: C. Hari Shankar

Bench: C. Hari Shankar

                            $~1 (company matter)
                            *     IN THE HIGH COURT OF DELHI AT NEW DELHI
                            +     CO.PET. 426/2014 and CA 608/2020
                                  PILLER GERMANY GMBH & CO. KG         ...Petitioner
                                               Through: Mr. Gyanendra Kumar, Adv.

                                                       versus

                                  PCI LTD.                                         ... Respondent
                                                       Through:   Mr. Ajit Warrier, Adv.

                                  CORAM:
                                  HON'BLE MR. JUSTICE C. HARI SHANKAR

                                               ORDER

                            %                  09.12.2020
                                         (Video-Conferencing)

                            CA 608/2020 in CO.PET. 426/2014

1. By the order dated 13th August, 2019, the Official Liquidator was appointed as a provisional liquidator to take charge of the affairs of M/s. PCI Ltd. (hereinafter referred to as "Company"). However, the order was suspended for six weeks in order to enable the Company to pay the dues of the petitioner.

2. The Company carried the matter in appeal to the Division Bench which, vide order dated 17th December, 2019, initially dismissed the appeal. However, thereafter, counsel for the parties appeared before the Division Bench and stated that they had arrived at a settlement whereby and whereunder a total amount of ₹ 1,68,267/- would be paid by the Company to the petitioner. Paras 12 to 14 of the Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI CO.PET. 426/2014 Page 1 of 4 Signing Date:12.12.2020 09:53:20 order of the Division Bench may be reproduced thus:

"12. After dismissal of the appeal, both learned counsels have appeared. They state that the parties have held negotiations and discussions amongst themselves, and it has been agreed that the appellant shall make payment of Euros 142,641.33 along with interest @ 3.31% per annum till date. It has been agreed that the first equated instalment shall be paid on 17.01.2020, and thereafter, successively in each following month, i.e. on 17.02.2020, 17.03.2020 and 17.04.2020. The total amount payable and agreeable between the parties is Euros 168,267.

13. The said settlement is recorded. The parties shall remain bound by the terms of the said settlement. In case of default on the part of the appellant in making payment of any part of settlement amount, the settlement shall not bind the respondent. Subject to the settlement being implemented, further proceedings in the winding up petition shall remain stayed.

14. The parties shall be at liberty to move the Company Judge, in case, the settlement is not implemented or, after the same is fully implemented, to seek appropriate orders."

3. Admittedly, there has been a default in complying with the terms of the settlement between the parties. The first and second instalments, which were required to be paid on 17th January, 2020 and 17th February, 2020, were paid belatedly. The third and fourth instalments are yet to be paid.

4. Mr. Warrier, learned counsel for the Company, prays that his client may be permitted to pay the third instalment to the petitioner on or before 31st December, 2020 and the fourth instalment on or before 28th February, 2021, and that if the payments are so made, the winding up order may not be given effect to.

5. It is obvious that, sitting singly, I cannot countenance this submission. The afore-extracted passages from the judgment of the Division Bench are clear and categorical. Para 13 clearly states that, in the case of default on the part of the Company in making payment of a part of the settlement amount, the settlement would not bind the petitioner. Even more significantly, the next sentence of the same paragraph stays further proceedings in the winding up the petition, "subject to the settlement being implemented"'. The settlement, admittedly, has not been implemented. By operation of para 13, therefore, there is no stay of the winding up the proceedings, continuing as on date.

6. It is not possible for me to revive the said proceedings by granting any further amnesty to the Company in the matter of making payments to the petitioner in accordance with the terms of the settlement. Any such direction, if at all, would be passed only by the Division Bench.

7. Mr. Warrier seeks a short accommodation, so that his client could, if they so choose, approach the Division Bench for appropriate directions.

8. Accordingly, renotify on 17th December, 2020.

9. It is made clear that, in the event of the Company not securing any order, modifying the aforesaid direction contained in the afore- extracted paragraph from the judgment, dated 17th December, 2019 of Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI CO.PET. 426/2014 Page 3 of 4 Signing Date:12.12.2020 09:53:20 the Division Bench in Co.App. 25/2019, this Court would proceed with the present application and pass appropriate orders in accordance with law.

C. HARI SHANKAR, J.

DECEMBER 09, 2020 r.bararia Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI CO.PET. 426/2014 Page 4 of 4 Signing Date:12.12.2020 09:53:20