“In all these matters, a petition for winding up had been filed either before the cheques were issued (in some cases) and in any event before the period of 15 days, after receipt of notice, expired. Thus the question for consideration is whether merely by reason of a winding up petition being presented there was a bar or legal disability in making payment.”
Learned Judges proceeded to consider the question on the aforesaid admitted premise and, therefore, examined the contention whether disposi-tion of any property by the company would become “void” immediately on presentation of the petition for winding up, or it would become void only when an order of winding up had been passed, or at least when a provisional liquidator has been appointed. Section 536(2) of the Companies Act was sought to be interpreted in a wide dimension so as to render all transactions void merely because a petition for winding up was presented – whether or not it was succeeded by an order of winding up or appointment of a provisional liquidator. The Division Bench of the High Court repelled the said contention on the following reasoning :
“If this argument is accepted, persons who purchased shares in the open market through the Stock Exchange without any knowledge of a petition for winding up having been presented, would also get affected as all such transactions would be void. Therefore, if this wide propositions were to be accepted then once a petition for winding up is presented, even without an order for winding up, there would be for all practical purposes closure of the Company. All activities of the company would have to a standstill. If this were the law then unscrupulous parties could blackmail/pressurise all companies to succumb to unjustified demands by merely threaten-ing to or presenting petitions for winding up. Conversely un-scrupulous companies could avoid payment/discharge of its liabilities by having their own parties present bogus petitions for winding up. After one is dismissed another could be filed. In this manner, the company could avoid discharging its liabilities in-definitely if not permanently. If the law was that merely on the filing of a petition for winding up all dispositions were void, it would lead to absurd or catastrophic results. In our view that can never be the legal position.”
Once a petition for winding up is presented it is not a necessary concomitant that the winding up would follow. This position is made clear in Section 440(2) which says that ”the court shall not make a winding up order on a petition presented to it under sub-section (1), unless it is satisfied that the voluntary winding up or winding up subject to the super- vision of the Court cannot be continued with due regard to the interests of the creditors or contributories or both.”
So a judicial exercise is called for to reach the satisfaction of the court that winding up has to be continued with due regard to the interest of the creditors or the contributors. Section 443of the Companies Act is important in this context. Sub-section (1) of that Section says that on hearing a petition for winding up the court may either (1) dismiss the petition or (2) make any interim order as it thinks fit or (3) make an order for a winding up. Sub-section (2) says that “where the petition is presented on the ground that it is just and equitable that the company should be wound up, the Court may refuse to make ar order of winding up. if it is of opinion that some other remedy is available to the petitioners and that they are acting unreasonably in seeking to have the company wound up instead of pursuing that other remedy.”
Two more provisions are relevant in this context. Section 450 says : “At any time after the presentation of a winding up petition and before the making of a winding up order, the Court may appoint the Officer Liquida-tor to be liquidator provisionally”. Before appointing a provisional liquida- tor the court has to give notice to the company and reasonable opportunity to make his representation. Section 449 enjoins that “on a winding up order being made in respect of a company the Official Liquidator shall, by virtue of his office, become the liquidator of the company.” In the above backdrop alone we can consider the impact of the legislative direction in Section 536(2) that any disposition of the property of the company made after the commencement of the winding up (i,e. after the presentation of a petition for winding up) shall be void. There are two important aspects here. First is that the word “void” need not automatically indicate that any disposition should be ab initio void. The legal implication of the word “void” need not necessarily be a stage of nullity in all contin-gencies. Black’s Law Dictionary gives the meaning of the word !’void” as having different nuances in different connotations. Once of them is of course “null, or having no legal force or binding effect”. And the other is “unable in law, to support the purpose for which it was intended”. After referring to the nuances between void and voidable the Lexicographer pointed out the following :
Update and Presentation by President/ General Secretary EUCA.
Presentation by Appointed Lawyer, Prominent Supreme Court lawyer on various options available with us/buyers against our fight with EIL
Detailed discussion of Pro’s and Con’s with the lawyer of Legal solution available.
Short listing of legal Proposals through deliberation and consensus.
Cost analysis of the Legal solutions and other costs incurred to date including Registration cost, Legal suit cost etc.
Presentation by EUCA Treasurer
Bank transactions by EUCA members to EUCA Bank Account status for legal payouts to lawyer
Approach includes EUCA’s Legal notice to EIL and propose meeting with the EIL management to get details of All EUCA members/association (including account statements/ledger of EUCA members, Notices follow ups etc.)
Deployment of legal options agreed above by EUCA member’s consensus
Contact – Earth United Consumer(s) Association
EARTH UNITED CONSUMER(s) ASSOCIATION 124, Kalyan Vihar, Polo Road, Delhi PIN Code 110009 Contact Name: Mr. Salesh Kumar
Hearing For: The chargesheet has been already filed. Therefore,the chargesheet has to be perused to chalk out the further course of action.
Note: It’s important for us to be there as their website is not working anymore and no one answering on emails or phone call and there is not at all any progress in any of the projects. It’s a matter to fight against the fraud and to voice up together for this injustice.
All buyers are requested to present on hearing of Petition of winding up in National Company Law Tribunal (NCLT) on Monday (29th May). It’s all about our hard earned money which cannot go in vain and we cannot let it go.
IN THE HIGH COURT OF DELHI AT NEW DELHI + CO.PET. 1117/2016 RAVI BHUSHAN GOEL & ANR ….. Petitioner Through: Mr. Ishaan Madan and Mr. G.P. Madaan, Advocates versus EARTH INFRASTRUCTURES LIMITED ….. Respondent Through: None. CORAM: HON’BLE MR. JUSTICE SIDDHARTH MRIDUL O R D E R % 08.11.2016 CO.APPL. 4453/2016 Exemption) Exemption granted subject to all just exceptions. The application is disposed of accordingly. CO.PET. 1117/2016 This petition under Sections 433 (e) and (f) r/w 434(1)(a) and 439 of the Companies Act, 1956 seeking winding up of the respondent-company is, inter alia, predicated on the ground of non-payment of an amount of Rs. 19,58,000/- despite service of notice of winding up on the registered office of the respondent-company, to which no reply is stated to have been received from the respondent-company.
Hearing For: EIL Directors has secretly applied for the Bail application.
Important Note: It’s important for us to attend tomorrow’s hearing, as we have received this bail notice in very short span of time. Moreover, it’s a pretty much planned moved of EIL directors and we need to be there to oppose it at any cost. We also came to know that few buyers will going to support EIL directors during the hearing. It’s important for all of us to spare time to attend the tomorrow’s hearing and in case if you cannot attend then please send someone (Family or Friends) on your behalf. Once again, the buyers need to show an unyielding spirit of unity.