Indian Kanoon - Search engine for Indian Law

Delhi High Court - Orders

Apar Industries Ltd vs Alliancz Poly-Chem Overseas Ltd on 22 January, 2019

Author: Jayant Nath

Bench: Jayant Nath

$~CP-25
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+    CO.PET. 536/2012
     APAR INDUSTRIES LTD                               ..... Petitioner
                       Through
                versus
     ALLIANCZ POLY-CHEM OVERSEAS LTD...... Respondent
                       Through      Mr.Kunal Sharma, Adv. for OL
                             Mr.Naresh Kumar Bansal, Adv. for R-1
     CORAM:
     HON'BLE MR. JUSTICE JAYANT NATH
                       ORDER

% 22.01.2019 CA 67/2019 Exemption allowed subject to all just exceptions. Application stands disposed of.

This application is filed seeking to recall the order dated 24.10.2013 appointing the Official Liquidator as the Provisional Liquidator and to stay the winding up proceedings. This court on 24.10.2013 had noted that none has appeared for the respondent. The court also noted that when on 25.2.2013 the respondent had put in appearance he was directed to file an affidavit from the Managing Director but no such affidavit or reply was filed in court. Accordingly, the court appointed the Official Liquidator as the Provisional Liquidator. Thereafter the Official Liquidator has been diligently following winding up of the respondent company. Citations have been published in the newspaper.

Now the Ex. Management has moved this application stating that the winding up order was based on unpaid cheques but the concerned Metropolitan Magistrate who was hearing the proceedings under section 138 of the N.I. Act filed by the petitioner has dismissed the case of the petitioner holding that there is no evidence on record which can be read against the accused persons and that the petitioner has failed to prove the case beyond reasonable doubt.

A perusal of the winding up petition shows that the case of the petitioner was that for the period in question, namely, 25.5.2009 to 31.12.2010 the respondent company had placed purchase orders/requisitions and material was supplied by the petitioner company. On 24.3.2011 the respondent company gave a balance confirmation. Further invoice wise cheques were also given to the petitioner which cheques were dishonoured. Based on this, the winding up petition was filed.

Now, almost 5½ years after the order was passed appointing the OL as the Provisional Liquidator the respondent has woken up and has filed this application. In my opinion, there is a finality to the order dated 24.10.2013. The same cannot be modified or vacated on the stated ground that proceedings under section 138 of the N.I. Act have been dismissed against the respondent/directors. In any case the standard of proof required for civil and criminal proceedings is materially different. On dismissal of the proceedings under section 138 of the N.I. Act does not imply that this court should recall its order admitting the petition.

There is no merit in the application. Same is dismissed.

OL will file complete status report. List on 25.3.2019 i.e. the date already fixed.

JAYANT NATH, J JANUARY 22, 2019/n