w w w . L a w y e r S e r v i c e s . i n



M/s. SBI Global Factors Ltd. & Another v/s Official Liquidator of M/s Minar International Limited


Company & Directors' Information:- SBI GLOBAL FACTORS LIMITED [Active] CIN = U65929MH2001PLC131203

Company & Directors' Information:- K N INTERNATIONAL LIMITED [Active] CIN = U45201UP2002PLC026841

Company & Directors' Information:- V AND S INTERNATIONAL PVT LTD [Active] CIN = U74899DL1992PTC049964

Company & Directors' Information:- S S A INTERNATIONAL LTD [Active] CIN = U15122DL1995PLC068186

Company & Directors' Information:- A T N INTERNATIONAL LIMITED [Active] CIN = L65993WB1983PLC080793

Company & Directors' Information:- MINAR INTERNATIONAL LTD [Under Liquidation] CIN = U99999MH2006PLC158966

Company & Directors' Information:- B N GLOBAL PRIVATE LIMITED [Active] CIN = U15400PB2014PTC038543

Company & Directors' Information:- D D INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51909PB1995PTC016929

Company & Directors' Information:- T K INTERNATIONAL LIMITED [Active] CIN = U55101OR1982PLC001092

Company & Directors' Information:- K V GLOBAL PRIVATE LIMITED [Active] CIN = U24100DL2014PTC263567

Company & Directors' Information:- GLOBAL CORPORATION LIMITED [Active] CIN = L74999DL1992PLC048880

Company & Directors' Information:- N R INTERNATIONAL LIMITED [Active] CIN = L74999WB1991PLC051738

Company & Directors' Information:- K J INTERNATIONAL LIMITED [Active] CIN = L15142PB1993PLC011274

Company & Directors' Information:- A K S INTERNATIONAL LIMITED [Active] CIN = U74899DL1996PLC076327

Company & Directors' Information:- S P INTERNATIONAL PRIVATE LIMITED [Active] CIN = U70100WB1994PTC063228

Company & Directors' Information:- T & I GLOBAL LTD. [Active] CIN = L29130WB1991PLC050797

Company & Directors' Information:- B. K. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74999DL2006PTC157013

Company & Directors' Information:- R S C INTERNATIONAL LIMITED [Active] CIN = L17124RJ1993PLC007136

Company & Directors' Information:- J C INTERNATIONAL LIMITED [Active] CIN = U51109WB1999PLC089037

Company & Directors' Information:- M T L INTERNATIONAL PRIVATE LIMITED [Amalgamated] CIN = U24219UP2001PTC025965

Company & Directors' Information:- T C N S INTERNATIONAL PRIVATE LIMITED [Amalgamated] CIN = U51311DL1996PTC080096

Company & Directors' Information:- K G GLOBAL PRIVATE LIMITED [Active] CIN = U74999DL2000PTC104788

Company & Directors' Information:- K V S INTERNATIONAL PRIVATE LIMITED [Active] CIN = U18101DL2003PTC120770

Company & Directors' Information:- G N INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51909DL2001PTC110766

Company & Directors' Information:- S H A M INTERNATIONAL PRIVATE LIMITED [Active] CIN = U45200MH1994PTC079867

Company & Directors' Information:- M K INTERNATIONAL LIMITED [Active] CIN = U51909DL1996PLC083430

Company & Directors' Information:- V. G. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51101DL2007PTC162540

Company & Directors' Information:- A. V. GLOBAL CORPORATION PRIVATE LIMITED [Active] CIN = U63090DL2007PTC159315

Company & Directors' Information:- D R INTERNATIONAL PRIVATE LIMITED [Active] CIN = U24132DL1996PTC079867

Company & Directors' Information:- R H INTERNATIONAL LIMITED [Active] CIN = U72900DL2007PLC159452

Company & Directors' Information:- G & G INTERNATIONAL PRIVATE LIMITED [Active] CIN = U17120DL2012PTC234047

Company & Directors' Information:- A & D INTERNATIONAL PRIVATE LIMITED [Active] CIN = U36109RJ2007PTC024176

Company & Directors' Information:- K A I INTERNATIONAL PRIVATE LIMITED [Active] CIN = U13100OR2007PTC009647

Company & Directors' Information:- C G INTERNATIONAL PRIVATE LIMITED [Active] CIN = U99999MH1996PTC097577

Company & Directors' Information:- K C INTERNATIONAL LIMITED [Active] CIN = U74899DL1994PLC060402

Company & Directors' Information:- A N GLOBAL LIMITED [Active] CIN = U92110MH1985PLC035269

Company & Directors' Information:- D S GLOBAL PRIVATE LIMITED [Active] CIN = U74899DL1995PTC071516

Company & Directors' Information:- M P INTERNATIONAL PRIVATE LIMITED [Active] CIN = U29130MH1997PTC107943

Company & Directors' Information:- A S INTERNATIONAL LIMITED [Strike Off] CIN = U74899DL1993PLC056158

Company & Directors' Information:- S. D. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74900UP2008PTC036047

Company & Directors' Information:- S AND I INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51909DL1995PTC072210

Company & Directors' Information:- L T INTERNATIONAL LIMITED [Active] CIN = U74899DL1999PLC097892

Company & Directors' Information:- A. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51102GJ2008PTC053840

Company & Directors' Information:- A B C GLOBAL PRIVATE LIMITED [Active] CIN = U51909PB2011PTC035103

Company & Directors' Information:- S J M INTERNATIONAL LIMITED [Active] CIN = U52110DL1987PLC028571

Company & Directors' Information:- S B S INTERNATIONAL PRIVATE LIMITED [Active] CIN = U18101DL1997PTC085878

Company & Directors' Information:- R. A. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51225DL2008PTC177405

Company & Directors' Information:- B G INTERNATIONAL PRIVATE LIMITED [Active] CIN = U50300PB2014PTC038889

Company & Directors' Information:- S F INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74999PB2000PTC023654

Company & Directors' Information:- I K INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74899DL1995PTC066267

Company & Directors' Information:- C K INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74899DL1991PTC045625

Company & Directors' Information:- L A INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51909PB2010PTC033683

Company & Directors' Information:- H R V INTERNATIONAL PRIVATE LIMITED [Amalgamated] CIN = U74899UP1993PTC057665

Company & Directors' Information:- K P INTERNATIONAL PRIVATE LIMITED [Active] CIN = U24110GJ2007PTC050026

Company & Directors' Information:- V S INTERNATIONAL PRIVATE LIMITED [Active] CIN = U85100MH1997PTC109647

Company & Directors' Information:- I A T GLOBAL COMPANY PRIVATE LIMITED [Active] CIN = U24116DL1997PTC084916

Company & Directors' Information:- N N INTERNATIONAL PRIVATE LIMITED [Active] CIN = U01111DL1999PTC099094

Company & Directors' Information:- S R V INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74140DL2012PTC243060

Company & Directors' Information:- A. R. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51900MH2010PTC228539

Company & Directors' Information:- B R INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74899DL1993PTC055562

Company & Directors' Information:- M J INTERNATIONAL PRIVATE LIMITED [Amalgamated] CIN = U74899DL1982PTC013231

Company & Directors' Information:- D N INTERNATIONAL LIMITED [Active] CIN = U36911TN1996PLC034205

Company & Directors' Information:- M. H. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U70102DL2007PTC164267

Company & Directors' Information:- M G M INTERNATIONAL PVT LTD [Active] CIN = U74899DL1982PTC013580

Company & Directors' Information:- J J INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51109DL1992PTC047657

Company & Directors' Information:- H D INTERNATIONAL LIMITED [Active] CIN = U74899DL1994PLC060720

Company & Directors' Information:- B N G GLOBAL INDIA LIMITED [Active] CIN = U52590DL2011PLC225377

Company & Directors' Information:- K. A. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51101UP2012PTC049338

Company & Directors' Information:- J & G INTERNATIONAL PRIVATE LIMITED [Active] CIN = U18109DL2012PTC238392

Company & Directors' Information:- K B K GLOBAL PRIVATE LIMITED [Active] CIN = U24296DL2016PTC290487

Company & Directors' Information:- K R INTERNATIONAL PRIVATE LIMITED [Active] CIN = U17291DL2008PTC172188

Company & Directors' Information:- S P INTERNATIONAL PVT LTD [Strike Off] CIN = U99999UP1965PTC003091

Company & Directors' Information:- J M INTERNATIONAL PVT LTD [Active] CIN = U45201WB1991PTC050829

Company & Directors' Information:- M & D GLOBAL PRIVATE LIMITED [Active] CIN = U31101UP1974PTC003937

Company & Directors' Information:- B M INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74899DL1992PTC048736

Company & Directors' Information:- S G INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U51109WB1998PTC086547

Company & Directors' Information:- B N INTERNATIONAL PRIVATE LIMITED [Active] CIN = U15412WB1999PTC089316

Company & Directors' Information:- V A INTERNATIONAL PRIVATE LIMITED [Active] CIN = U01111DL2000PTC104712

Company & Directors' Information:- S. J. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U27310DL2007PTC169438

Company & Directors' Information:- V R GLOBAL PRIVATE LIMITED [Active] CIN = U45200WB2007PTC120797

Company & Directors' Information:- N H B INTERNATIONAL PRIVATE LIMITED [Converted to LLP] CIN = U67190MH1997PTC107387

Company & Directors' Information:- P D K INTERNATIONAL PVT LTD [Active] CIN = U74140WB1992PTC056468

Company & Directors' Information:- G. S. C. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U29120MH1994PTC080380

Company & Directors' Information:- A J INTERNATIONAL PRIVATE LIMITED [Converted to LLP] CIN = U74899DL1994PTC060818

Company & Directors' Information:- J S M INTERNATIONAL LIMITED [Active] CIN = U85110KA1996PLC020046

Company & Directors' Information:- N M INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74120MH2012PTC234492

Company & Directors' Information:- S S M INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51909DL1997PTC089876

Company & Directors' Information:- A P J INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U51909HR2010PTC040304

Company & Directors' Information:- T. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U72900DL1997PTC091049

Company & Directors' Information:- M M GLOBAL PRIVATE LIMITED [Strike Off] CIN = U29120WB1986PTC041280

Company & Directors' Information:- V R INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51101UP2011PTC043952

Company & Directors' Information:- A & F INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U00265KA1995PTC018998

Company & Directors' Information:- M E C INTERNATIONAL PRIVATE LIMITED [Active] CIN = U33111GJ1963PTC082423

Company & Directors' Information:- R V GLOBAL PRIVATE LIMITED [Active] CIN = U74990MH2009PTC195301

Company & Directors' Information:- J K INTERNATIONAL PRIVATE LIMITED [Active] CIN = U01100MH2004PTC144492

Company & Directors' Information:- D. S. R. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74999UP2010PTC039954

Company & Directors' Information:- B L S INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74900UR2010PTC033210

Company & Directors' Information:- R B INTERNATIONAL LTD [Strike Off] CIN = U18101WB1993PLC059515

Company & Directors' Information:- P Y INTERNATIONAL PRIVATE LIMITED [Converted to LLP] CIN = U51102RJ1995PTC010133

Company & Directors' Information:- R C INTERNATIONAL LIMITED [Strike Off] CIN = U51909TG1991PLC012477

Company & Directors' Information:- S R GLOBAL PRIVATE LIMITED [Strike Off] CIN = U51109WB1997PTC084553

Company & Directors' Information:- I AND A INTERNATIONAL PRIVATE LIMITED [Active] CIN = U72200TG1995PTC019936

Company & Directors' Information:- P V INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74899DL1998PTC094598

Company & Directors' Information:- H V GLOBAL PRIVATE LIMITED [Active] CIN = U18101DL2000PTC103960

Company & Directors' Information:- I B INTERNATIONAL PRIVATE LIMITED [Under Process of Striking Off] CIN = U72200DL2000PTC105735

Company & Directors' Information:- A M INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U74899DL1995PTC066228

Company & Directors' Information:- R P GLOBAL PRIVATE LIMITED [Strike Off] CIN = U74990MH2009PTC193409

Company & Directors' Information:- K K M INTERNATIONAL PRIVATE LIMITED [Active] CIN = U17110MH1995PTC089836

Company & Directors' Information:- M S GLOBAL PRIVATE LIMITED [Active] CIN = U70100MH2008PTC213273

Company & Directors' Information:- Z. H. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U21098MH2010PTC210735

Company & Directors' Information:- J R INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51909TN2002PTC048744

Company & Directors' Information:- L S INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U74999DL2009PTC193390

Company & Directors' Information:- M B INTERNATIONAL PVT LTD [Strike Off] CIN = U52190DL2001PTC110572

Company & Directors' Information:- O K R INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U74900DL1996PTC077152

Company & Directors' Information:- GLOBAL INTERNATIONAL LIMITED [Strike Off] CIN = U36911UP1999PLC024754

Company & Directors' Information:- B B C INTERNATIONAL PVT LTD [Strike Off] CIN = U25209WB1984PTC037383

Company & Directors' Information:- K S INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U51909MH2001PTC134345

Company & Directors' Information:- A TO Z INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U51101TN1992PTC022507

Company & Directors' Information:- C & A INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U51900MH1982PTC026718

Company & Directors' Information:- J S INTERNATIONAL PVT LTD [Strike Off] CIN = U51900MH1982PTC027604

Company & Directors' Information:- A C INDIA INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74899DL1989PTC034784

Company & Directors' Information:- N B GLOBAL (INDIA) PRIVATE LIMITED [Active] CIN = U15122UP2012PTC051614

Company & Directors' Information:- INDIA INTERNATIONAL COMPANY PRIVATE LIMITED [Active] CIN = U51228MH1955PTC009483

Company & Directors' Information:- R K INTERNATIONAL PVT LTD [Strike Off] CIN = U63040PB1982PTC004926

Company & Directors' Information:- L & P INTERNATIONAL PRIVATE LIMITED [Active] CIN = U52100DL2016PTC292025

Company & Directors' Information:- R B N INTERNATIONAL PRIVATE LIMITED [Active] CIN = U52300DL2012PTC243998

Company & Directors' Information:- P AND P INTERNATIONAL PRIVATE LIMITED. [Strike Off] CIN = U24100OR1993PTC003244

Company & Directors' Information:- B P INTERNATIONAL PVT LTD [Strike Off] CIN = U31909HP1984PTC005785

Company & Directors' Information:- E C INTERNATIONAL PVT LTD [Strike Off] CIN = U99999DL1982PTC013146

Company & Directors' Information:- S R A INTERNATIONAL PVT LTD [Strike Off] CIN = U99999DL1980PTC010389

Company & Directors' Information:- M M INTERNATIONAL PVT LTD [Converted to LLP] CIN = U51312DL1977PTC008583

Company & Directors' Information:- A K INDIA INTERNATIONAL PRIVATE LTD [Strike Off] CIN = U45201DL1981PTC012389

Company & Directors' Information:- O P INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U55101PB2013PTC037499

Company & Directors' Information:- J & A INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U51900PB2013PTC037302

Company & Directors' Information:- FACTORS PRIVATE LIMITED [Active] CIN = U51102TN1946PTC000726

Company & Directors' Information:- Y. A. INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U74900RJ2012PTC040431

Company & Directors' Information:- A M GLOBAL PRIVATE LIMITED [Active] CIN = U74999MH2015PTC261061

Company & Directors' Information:- D & A INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74999MH2015PTC262713

Company & Directors' Information:- R L INTERNATIONAL PRIVATE LIMITED [Active] CIN = U18204UP2016PTC076344

Company & Directors' Information:- L S A GLOBAL INDIA PRIVATE LIMITED [Under Process of Striking Off] CIN = U74900TG2015PTC098308

Company & Directors' Information:- V P S INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U93030UP2014PTC066242

Company & Directors' Information:- R L GLOBAL INDIA PRIVATE LIMITED [Strike Off] CIN = U52300HP2014PTC000764

Company & Directors' Information:- J V INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U51102DL2012PTC240197

Company & Directors' Information:- S R L INTERNATIONAL PRIVATE LIMITED [Under Process of Striking Off] CIN = U20296AP2013PTC085533

Company & Directors' Information:- G R GLOBAL PRIVATE LIMITED [Active] CIN = U70102KA2013PTC069586

Company & Directors' Information:- H. E. GLOBAL PRIVATE LIMITED [Active] CIN = U72901GJ2016PTC092866

Company & Directors' Information:- M D INTERNATIONAL LIMITED [Active] CIN = U74140MH1981PTC025007

Company & Directors' Information:- INTERNATIONAL CO PRIVATE LIMITED [Strike Off] CIN = U51109UR1935PTC000663

Company & Directors' Information:- D C M INTERNATIONAL LTD. [Strike Off] CIN = U99999DL2000PTC004208

    Company Application No. 698 of 2018 in Company Petition No. 376 of 2010

    Decided On, 03 May 2019

    At, High Court of Judicature at Bombay

    By, THE HONOURABLE MR. JUSTICE S.J. KATHAWALLA

    For the Applicants: Matthew Nedumpara alongwith Preeti Dambre instructed by C.J. Joveson, Advocates. For the Official Liquidator: Sharan Jagtiani along with Sumeet Nankani, Advocates.



Judgment Text

P.C.:

1. The Applicant is an ex-director of the Company in liquidation, M/s Minar International Limited (“the Company”). The Company was ordered to be wound up by an Order of this Court dated 16th March 2012 and the Official Liquidator was accordingly appointed as liquidator of the Company. By an Order dated 17th September 2013 the Company Court (Coram: N.M. Jamdar, J.) granted leave to the Original Petitioner to bring the Official Liquidator of the Company on record in a suit that the Original Petitioner was prosecuting against the Company and the Applicant. That Suit had already been filed in 2009 in the Kodagu District (Coorg) in Karnataka (“the Suit”). Further, the Company Court also granted leave to the Original Petitioner under Section 446 of the Companies Act, 1956 (“the 1956 Act”) to proceed with the Suit and to bring the Official Liquidator on record. The Application for leave was allowed by the Company Court.

2. The present Application has been filed on 15th May, 2018, seeking: an order from the Company Court to hold and declare that with the repeal of the 1956 Act and its substitution by the Companies Act, 2013 (“the 2013 Act”) the Order granting leave is rendered null and void in view of this Court losing jurisdiction to continue the Suit (Prayer (a)); recall of the aforesaid Order granting leave under Section 446 of the 1956 Act (wrongly numbered as prayer (a)). The Application also seeks interim reliefs of stay of further proceedings in the Suit. As this Application is being decided finally and as it was argued on that basis, the prayer for interim reliefs does not arise for consideration.

3. The main ground pleaded in the Application and as contended by learned Advocate for the Applicant for revoking the leave under Section 446 of the 1956 Act is set out in prayer (a) of the Application. In the Application and in the submission of the Applicant, it is contended that the grant of leave under Section 446 of the 1956 Act is contrary to the doctrine of estoppel as the Original Petitioner/Petitioning Creditor has already elected its remedy of filing the Suit for recovery of moneys against the Company and the Applicant, who stood guarantor for the credit facilities extended to the Company. It was submitted that the effect of grant of such leave was to allow two proceedings to proceed simultaneously against the Company or its ex Director, the Applicant herein.

4. Although the Application accepts and admits that the Company Petition having been filed and allowed much prior to 1st June 2016, is a ‘saved Petition’ and continues to remain within the jurisdiction of this Court, the learned Advocate for the Applicant submitted that by the coming into force of Section 430 of the 2013 Act on 1st June 2016, this Court has lost all jurisdiction over the winding up proceedings and that the Order granting leave under Section 446 of the Act ceased to be alive. It was also submitted that Section 430 of the 2013 Act is a procedural provision that operates retrospectively. It is further submitted that all orders passed in the Suit also are a nullity as a result of the aforesaid submission.

5. Mr. Sharan Jagtiani, learned Counsel for the Official Liquidator, opposed the Application and submitted that the same is totally misconceived in law. As regards the doctrine of election, it is submitted that the same has no application to the present case because the same can never apply as between the Suit and the winding up proceeding. The Suit is a proceeding for recovery of money against the Company and the Applicant in his personal capacity as guarantor and for realisation of security whereas the winding up proceeding is based on the exercise of a statutory right of a creditor that would result in winding up of a company, which is an order in rem.

6. It was then contended on behalf of the Official Liquidator that the other submission that the 2013 Act repeals the earlier 1956 Act and that Section 430 of the 2013 has the effect of annulling the Order granting leave is also entirely wrong in law. It was submitted that the Company Petition in which the Order granting leave under Section 446 of the 1956 Act was passed, admittedly remains within the jurisdiction of the High Court as it was filed and finally allowed much before the coming into force of the provisions of the 2013 Act. It is further submitted that even the Order granting leave under Section 446 of the 1956 was also much before coming into force of Section 430 of the 2013 Act. Section 430 of the 2013 Act can never apply retrospectively to invalidate such Orders and acts, which are in any event saved by the repeal and saving provisions of the 2013 Act.

7. Before dealing with the submissions it is pertinent to note that this Court after the hearing concluded on 21st February, 2019, by an order passed on that day i.e. 21st February, 2019, gave an opportunity to the Applicant to file its written submissions on or before 27th February, 2019. Since Mr. Matthew Nedumpara, Advocate for the Plaintiff had stated that he being a senior citizen would take some time to file the written submissions on behalf of the Applicant, this Court waited much beyond 27th February, 2019 for the written submissions of the Applicant which despite a long wait were not filed/tendered by the Applicant.

8. Based on the Application and the submission made by the parties, I am of the opinion that both of the main submissions advanced by the Applicant in support of the Application are entirely without any merit and are liable to be rejected. In support of the submission of estoppel or cause of action estoppel the learned Advocate for the Applicant relied upon the decision of Thoday v. Thoday reported in (1964) 1 All ER 341. The principles laid down in that case have no bearing on the issue in the present matter as the distinction between a suit for recovery and winding up proceedings is now well settled and the nature of the two proceedings is entirely different. A company petition is filed on the basis that a company is commercially insolvent or deemed to be commercially insolvent and is therefore liable to be wound up because it is unable to pay its debts. It is not a recovery proceeding based on a claim for money neither is it a proceeding for realisation of a security for recovery of a money claim. The cause of action or legal basis for both these proceedings is entirely distinct. This scope of a company petition has been clearly stated by the Hon’ble Supreme Court in the case of Haryana Telecom Ltd. v. Sterlite Industries (India) Ltd. reported in (1999) 5 SCC 688 at paragraph 5, relied upon by the Official Liquidator, which reads as follows:

“The claim in a petition for winding up is not for money. The petition filed under the Companies Act would be to the effect, in a matter like this, that the company has become commercially insolvent and, therefore, should be wound up. The power to order winding up of a company is contained under the Companies Act and is conferred on the court….”

(Emphasis Supplied)

9. There is another reason why the principle of estoppel or cause of action estoppel can have no application in the present case. The Company Petition is between the Petitioning Creditor and the Company alone, whereas the Suit was filed against both, the Company and the Applicant, in his individual capacity as the exdirector/ guarantor thereof. The Applicant as ex-Director is not and could not be a party Respondent to the Petition for winding up. I am therefore of the opinion that such proceedings are simultaneously maintainable even if the underlying subject matter of the dispute may overlap.

10. The next contention of Mr. Nedumpara on the effect of Section 430 of the 2013 Act on the jurisdiction of this Court in ‘saved Petitions’ and earlier Orders already passed in those Petitions, is also entirely without any merit and is liable to be rejected. In my opinion once it is admitted and accepted even by the Applicant that the present Company Petition is a ‘saved Petition’ and not to be transferred to the National Company Law Tribunal under the Notification of 1st June 2016, then the winding up process to be followed in respect of such a company would be in accordance with the provisions of the 1956 Act, under which it was ordered to be wound up. As has been seen from the facts stated above, the winding up Order and the Order granting leave under Section 446 of the 1956 Act are much prior to the coming into force of the provisions of the 2013 Act and the Notification of transfer of company petitions other than ‘saved petitions’ to the NCLT.

11. Section 430 of the 2013 Act only ousts the jurisdiction of a civil court to entertain a suit or proceeding which the Tribunal is empowered to determine under the 2013 Act or under any other Act. Section 430 of the 2013 Act reads as follows: “Civil court not to have jurisdiction—No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which the Tribunal or the Appellate Tribunal is empowered to determine by or under this Act or any other law for the time being in force and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act or any other law for the time being in force, by the Tribunal or the Appellant Tribunal.”

12. It is ex facie clear that Section 430 of the 2013 Act, which was not even a statutory provision in force at the relevant time of orders in the present Company Petition, can have no bearing on the authority or jurisdiction of this Court to grant leave under Section 446 of the 1956 Act in a petition that was and continues to remain within the jurisdiction of this Court. At the relevant time this Court undoubtedly had jurisdiction to consider the Application for leave under Section 446 of the 1956 Act. Moreover, this Court was acting as a Company Court in granting such leave to allow the Suit to continue. The Suit has accordingly continued and it is also clear that the Suit, being for recovery of money, is not in respect of a matter that even after the coming into force of the 2013 Act is within the jurisdiction of the Tribunal or Appellate Tribunal.

13. Further, I also find no merit in the submission that Section 430 applies retrospectively because it is a procedural provision. It is clearly not a procedural provision but a substantive provision on the ouster of jurisdiction of a civil court and, in any event, apart from the issue of retrospective operation, I find there is no merit in this submission relying on Section 430 of the 2013 Act.

14. Lastly, and in any view of the matter there is also merit in the submission of the Official Liquidator that the Order granting leave under Section 446 of the 1956 Act would be saved under the repeal and saving clause of the 2013 Act. Section 465 of the 2013 Act reads as follows:

“465. Repeal of certain enactments and savings (1) The Companies Act, 1956 and the Registration of Companies (Sikkim) Act,1961 (hereafter in this section referred to as the repealed enactments) shall stand repealed:

Provided that the provisions of Part IX A of the Companies Act, 1956 shall be applicable mutatis mutandis to a Producer Company in a manner as if the Companies Act, 1956 has not been repealed until a special Act is enacted for Producer Companies:

Provided further that until a date is notified by the Central Government under subsection (1) of Section 434 for transfer of all matters, proceedings or cases to the Tribunal, the provisions of the Companies Act, 1956 in regard to the jurisdiction, powers, authority and functions of the Board of Company Law Administration and court shall continue to apply as if the Companies Act, 1956 has not been repealed:

Provided also that provisions of the Companies Act, 1956 referred in the notification issued under section 67 of the Limited Liability Partnership Act, 2008 shall, until the relevant notification under such section applying relevant corresponding provisions of this Act to limited liability partnerships is issued, continue to apply as if the Companies Act, 1956 has not been repealed.

(2) Notwithstanding the repeal under sub-section (1) of the repealed enactments,—(a) anything done or any action taken or purported to have been done or taken, including any rule, notification, inspection, order or notice made or issued or any appointment or declaration made or any operation undertaken or any direction given or any proceeding taken or any penalty, punishment, forfeiture or fine imposed under the repealed enactments shall, insofar as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under the corresponding provisions of this Act; (b) subject to the provisions of clause (a), any order, rule, notification, regulation, appointment, conveyance, mortgage, deed, document or agreement made, fee directed, resolution passed, direction given, proceeding taken, instrument executed or issued, or thing done under or in pursuance of any repealed enactment shall, if in force at the commencement of this Act, continue to be in force, and shall have effect as if made, directed, passed, given, taken, executed, issued or done under or in pursuance of this Act; …”

(Emphasi

Please Login To View The Full Judgment!

s Supplied) 15. Section 465(2) of the 2013 Act states that notwithstanding the repeal of the 1956 Act, any Order made under the 1956 Act, shall be deemed to have been made under the corresponding provision of the 2013 Act, provided that such Order is not inconsistent with the provisions of the 2013 Act. Section 446 of the 1956 Act corresponds to Section 279 of the 2013 Act and is not, in any manner whatsoever, inconsistent with the provisions thereof. I am therefore of the opinion that in any view of the matter the Order dated 17th September 2013 passed by this Court in exercise of its powers under Section 446 of the 1956 Act, shall be deemed to be an Order passed under Section 279 of the 2013 Act. Accordingly, any reliance on Section 430 of the 2013 Act to contend that the said Order is annulled or void by the enaction of Section 430 of the 2013 Act is without any basis whatsoever, as the said Order would be expressly saved by Section 465 read with Section 279 of the 2013 Act. 16. Additionally, it may be noted that there is gross delay in filing the Company Application. However, as the contentions of the Applicant have been considered and rejected on merits, the aspect of delay is not being dealt with in detail except to note that there is unexplained delay in filing the Company Application. For all of the above reasons there is absolutely no merit in the Company Application. The Company Application is accordingly dismissed with no order as to costs.
O R







Judgements of Similar Parties

30-09-2020 M/s. Indo Unique Flame Ltd. Versus M/s. N.N. Global Merchantile Pvt. Ltd. & Others In the High Court of Bombay at Nagpur
30-09-2020 M/s. Indo Unique Flame Ltd. Versus M/s. N.N. Global Merchantile Pvt. Ltd. & Others In the High Court of Bombay at Nagpur
29-09-2020 National Highways Authority of India Versus Sahakar Global Limited High Court of Delhi
22-09-2020 Elite International Pvt. Ltd., Mumbai Versus United India Insurance Co. Ltd., Chennai & Another National Consumer Disputes Redressal Commission NCDRC
27-08-2020 M/s. Web International Cargo Ltd., Rep. by its proprietor Srinivas P. Bhat Versus M/s. Magnum Logistics Ltd., Rep. by its Director, Jayaram High Court of Karnataka
26-08-2020 Huawei Technologies (UK) Co Ltd. & Another Versus Unwired Planet International Ltd. & Another United Kingdom Supreme Court
24-08-2020 The Director of Income-Tax International Taxation, Bangalore & Another Versus The Executive Engineer, M/s. Bangalore Water Supply & Sewerage Board, Bangalore & Another High Court of Karnataka
20-08-2020 M/s. Life Cell International Private Limited, Represented by its Company Secretary D. Mahesh, Chennai Versus Vinay Katrela High Court of Judicature at Madras
22-07-2020 Director of Income Tax-II (International Taxation) New Delhi & Another Versus M/s. Samsung Heavy Industries Co. Ltd. Supreme Court of India
17-07-2020 ICICI Lombard General Insurance Company Ltd. Versus Delhi International Airport Ltd. Delhi State Consumer Disputes Redressal Commission New Delhi
17-07-2020 Paras International Exports Versus Export Credit Guarantee Corporation of India Limited Delhi State Consumer Disputes Redressal Commission New Delhi
29-06-2020 Coromandel International Ltd. (Earlier Known As Coromandel Fertillisers Ltd.) Through its Authorized Representative, Vishakhapatnam & Others Versus Kamrubai & Others National Consumer Disputes Redressal Commission NCDRC
26-06-2020 IRCON International Ltd. Versus M/s. Meumal Athwani High Court of Judicature at Calcutta
23-06-2020 M/s. Angelique International Limited Versus Public Electricity Corporation & Others High Court of Delhi
12-06-2020 Aberdeen Asia Pacific Including Japan Equity Fund Versus Deputy Commissioner of Income Tax (International Taxation)-1(1)(1) & Another High Court of Judicature at Bombay
10-06-2020 Hotel Nikhil Sai International Bar & Restaurant Versus Assistant Commissioner ST Audit & Another High Court of for the State of Telangana
10-06-2020 Director of Income-Tax, International Taxation Versus M/s. Sasken Communication Technologies Ltd. High Court of Karnataka
09-06-2020 Ircon International Limited Versus Government of Andhra Pradesh rep by its Chief Engineer High Court of for the State of Telangana
05-06-2020 Sun Pharma Laboratories Limited Versus BDR Pharmaceuticals International Pvt. Ltd. & Another High Court of Delhi
01-06-2020 Sri Vinayaka Caterors & Consultants, Partnership Firm, Represented by its Partners, K. Eshwar Versus The Executive Warden, International Hostels, Anna University, Chennai & Others High Court of Judicature at Madras
19-05-2020 M/s. Shriram Capital Limited, A Limited Company represented by its Vice-President, N. Mani Versus The Director of Income Tax, (International Taxation) & Another High Court of Judicature at Madras
04-05-2020 Bhansali Productions Pvt.Ltd. Versus Eros International Medial Ltd. & Others High Court of Judicature at Bombay
01-05-2020 M/s. Inter Ads Exhibition Pvt. Ltd. Versus Busworld International Cooperatieve Vennootschap Met Beperkte Anasprakelijkheid High Court of Delhi
30-04-2020 Banyan Tree Growth Capital L.L.C. Versus Axiom Cordages Limited (Previously Known as Axion Impex International Ltd.) & Others High Court of Judicature at Bombay
28-04-2020 Flemingo Travel Retail Limited, Having Registered Office at Turbhe, Navi Mumbai, Represented by Its Authorised Signatory Nixon Varghese Versus Kannur International Airport Limited, Mattannur, Represented by Its Managing Director & Another High Court of Kerala
08-04-2020 Standard Retail Pvt. Ltd. & Others Versus M/s. G.S. Global Corp & Others High Court of Judicature at Bombay
18-03-2020 Union of India Versus Bharat Biotech International Ltd. & Others High Court of Delhi
13-03-2020 M/s. Shriram Capital Limited, A Limited Company represented by its Vice-President, N. Mani Versus The Director of Income Tax, (International Taxation) & Another High Court of Judicature at Madras
13-03-2020 Paradigm Geophysical Pty Ltd. V/S Commissioner of Income Tax (International Taxation)-3, New Delhi High Court of Delhi
13-03-2020 Dr. Rajesh Jhorawat Versus Life Cell International Pvt. Ltd., Kancheepuram & Another National Consumer Disputes Redressal Commission NCDRC
12-03-2020 Joshi Technologies International, Inc-India Projects Versus Union of India High Court of Gujarat At Ahmedabad
11-03-2020 M/s. Meyer Apparel Ltd. Versus M/s. Panchanan International Pvt. Ltd. High Court of Delhi
06-03-2020 Uttam Datta Versus Proprietor, International Trading Co. & Another West Bengal State Consumer Disputes Redressal Commission Kolkata
03-03-2020 Cambridge International School & Another Versus Priyanka Punjab State Consumer Disputes Redressal Commission Chandigarh
28-02-2020 M/s. Techno Global Services Pvt. Ltd. & Another Versus National Insurance Co. Ltd. & Others West Bengal State Consumer Disputes Redressal Commission Kolkata
28-02-2020 Seed Works International Pvt., Ltd. & Another Versus Banothu Rangamma & Others Telangana State Consumer Disputes Redressal Commission Hyderabad
27-02-2020 Perfect Synergy Advisory Pvt. Ltd. Versus Sagar Infra Rail International Limited & Others High Court of Delhi
24-02-2020 Saurabh Kar & Another Versus Kolkata West International City Pvt. Ltd. & Another West Bengal State Consumer Disputes Redressal Commission Kolkata
14-02-2020 APS Forex Services Private Limited Versus Shakti International Fashion Linkers & Others Supreme Court of India
14-02-2020 Seed Works International Pvt., Ltd., Rep. by its Finance Controller, TN Rajan & Another Versus Banothu Tharya & Another Telangana State Consumer Disputes Redressal Commission Hyderabad
14-02-2020 TEK Systems Global Services Pvt. Ltd. Versus Naveen Kumar Mamidala High Court of for the State of Telangana
11-02-2020 Radford Global Limited Versus Securities & Exchange Board of India, SEBI Bhavan SEBI Securities amp Exchange Board of India Securities Appellate Tribunal
11-02-2020 Ircon International Limited Versus C.R. Sons Builders & Development Pvt. Ltd. & Another High Court of Delhi
07-02-2020 Swastik Builders, Satyam Apartments Next to Rowell Continental (Sunny International) & Others Versus Dr. Shobha & Others In the High Court of Bombay at Nagpur
06-02-2020 Samar Roychoudhury Versus Global Health City West Bengal State Consumer Disputes Redressal Commission Kolkata
05-02-2020 M/s. Texcel International Pvt. Ltd., Sengundram Industrial Area (Near Ford India Ltd.,), Chengalpattu Versus M/s. Chennai Steel Tubes, Rep.by one of its Partner, G. Bhavanishankar High Court of Judicature at Madras
31-01-2020 Alstom T&D India Ltd., Formerly known as Areva T&D India Ltd., Represented by its Managing Director, Rep. by its authorized signatory, Padappai Versus M/s. Texcel International Pvt., Ltd., Represented by Mukunthan C.O.O, Chengalpattu High Court of Judicature at Madras
30-01-2020 Bristol-Myers Squibb Holdings Ireland Unlimited Company & Others Versus BDR Pharmaceuticals International Pvt. Ltd. & Another High Court of Delhi
27-01-2020 Hotel Soorya International, Represented by its Partner, S. Arumugam Versus The Secretary to Government, Home, Prohibition & Excise, Chennai & Others High Court of Judicature at Madras
22-01-2020 M/s. IRCON International Limited, (A Government of India Undertaking), Rep. by its Joint General Manager(South), Bangalore Versus The Government of Tamil Nadu, Rep. by the Superintending Engineer(H), Villupuram High Court of Judicature at Madras
14-01-2020 Export Import Bank of India & Another Versus Punjab National Bank (International) Ltd. & Another High Court of Judicature at Bombay
14-01-2020 Ircon International Limited Versus Union Territory of Jammu & Kashmir & Others High Court of Jammu and Kashmir
14-01-2020 International Car and Motors Ltd. Versus Shyam Sundar Sen & Others West Bengal State Consumer Disputes Redressal Commission Kolkata
13-01-2020 Union of India rep. By its Enforcement Officer Enforcement Directorate Chennai Versus M/s. Raiments & Garments International, Chennai & Others High Court of Judicature at Madras
13-01-2020 The Principal , Global Institute of Fashion Technology (GIFT) & Another Versus Bikramadittya Sai & Others West Bengal State Consumer Disputes Redressal Commission Kolkata
06-01-2020 Phoenix International Ltd V/S Commissioner of Central Excise, Noida-I Customs Excise Service Tax Appellate Tribunal Regional Bench Allahabad
06-01-2020 M/s. Prime Gold International Limited, Represented by its Director Achin Aggarwal & Another Versus The Additional Director General, The Directorate General of Goods and Services Tax Intelligence Coimbatore Zonal Unit, Coimbatore & Others High Court of Judicature at Madras
04-01-2020 HDFC Bank Limited V/S KPG International Private Limited and Others. Debts Recovery Tribunal Delhi
03-01-2020 Global Hospitals, Lakdi-ka-pool, Hyderabad, Represented by its Chairman and Managing Director, Dr. Ravindranath & Others Versus Mohammed Abdul Aleem @ M.A. Aleem Telangana State Consumer Disputes Redressal Commission Hyderabad
20-12-2019 Global United Shipping India Private Limited, (formerly known as Jalhansa Enterprises Pvt. Ltd.), Represented by its Director, Prem Kumar Menon, Chennai Versus Traffic Manager, Chennai Port Trust, Chennai High Court of Judicature at Madras
19-12-2019 J. John Winfred Versus International Airport Authority of India Rep. By Airport Director, Chennai High Court of Judicature at Madras
12-12-2019 Moets Catering Services Through Its Sole Proprietor Mr. Sandeep Bindra Versus Dr. Ambedkar International Center & Others High Court of Delhi
12-12-2019 M/s. Saravana International, Rep. by its Proprietor C.R. Devanathan, Panruti Versus The Assistant Commissioner (ST), Panruti High Court of Judicature at Madras
11-12-2019 M/s. KEPCO KDN Co. Ltd., Represented by Its Head India Branch Office & The Authorized Signatory Jongyun Shin Versus M/s. Enzen Global Solution Pvt. Ltd, Bangalore, Represented by Its General Manager, K.B. Sreeju & Another High Court of Kerala
06-12-2019 Tuli International Through it is Partner, Neeraj Tuli Versus New India Assurance Co. Ltd. Through Sh. A.K. Longai, Manager, Duly Contituted Attorney & Another National Consumer Disputes Redressal Commission NCDRC
06-12-2019 M/s. N.V. International Versus State of Assam & Others Supreme Court of India
19-11-2019 M/s. Akshayah Global School, Represented by its Founder-Chairman, T.K. Venkatesh Versus The State of Tamil Nadu, Represented by its Secretary, School Education Department, Chennai & Others High Court of Judicature at Madras
13-11-2019 Shaji B. John, Kings International Ltd., Quilon & Others Versus The Marine Products Exports Development Authority, Cochin, Represented by Its Secretary, Dr. G. Santhanakrishnan High Court of Kerala
07-11-2019 SPT International & Finance Ltd. Versus Bank of Baroda & Another High Court of Judicature at Calcutta
30-10-2019 M/s. Usha International Ltd., Represented by its Chief Operating Officer, Haryana Versus Customs & Central Excise Settlement Commission, Additional Bench, Chennai & Another High Court of Judicature at Madras
22-10-2019 M/s. EOS GmbH-India Branch, Rep. By its Authorized Signatory, Prakasam Anand (Country Manager), Kolathur Versus The Deputy Commissioner of Income Tax, International Taxation 1(1), Chennai High Court of Judicature at Madras
17-10-2019 K.P.L. International Limited, Represented by it Senior Vice President, R.P. Mundra Versus The Commercial Tax Officer Saidapet Assessment Circle, Chennai High Court of Judicature at Madras
17-10-2019 Head Legal, Gmr Hyd International Airport Ltd. Versus Registrar, Airports Economic Regulatory Appellate Tribunal 2 High Court of for the State of Telangana
16-10-2019 Global Heritage Venture Ltd. Versus Punjab National Bank & Others High Court of Delhi
15-10-2019 Global United Shipping India (P) Ltd., Rajiv Gandhi Salai (OMR) Mettukuppam Versus Assistant Commissioner of Customs (Refund), Chennai Customs House, Rajaji Salai, Chennai High Court of Judicature at Madras
09-10-2019 M.L. Kumawat & Another Versus Bharat Bio Tech International Ltd. National Consumer Disputes Redressal Commission NCDRC
27-09-2019 Chennai Port Trust Versus Chennai International Terminals Pvt. Ltd. & Others High Court of Judicature at Madras
26-09-2019 Ajit Ravi Versus Cochin International Airport Ltd. High Court of Kerala
25-09-2019 Deputy Commissioner & Special Land Acquisition Officer Versus M/s. S.V. Global Mill Limited, Represented by its Authorised Signatory & Manager, K. Johnson High Court of Karnataka
20-09-2019 International Society for Krishna Consciousness Versus Ishwari Prasad Singh Roy & Others High Court of Judicature at Calcutta
19-09-2019 Dharam Vir & Others Versus BGS International Public School & Others High Court of Delhi
18-09-2019 The Management of M/s. International Travel House Limited, Chennai Versus The Presiding Officer, First Additional Labour Court, Chennai & Others High Court of Judicature at Madras
29-08-2019 M/s. Kadimi International Pvt. Ltd. Versus M/s. Emaar MGF Land Limited High Court of Delhi
27-08-2019 Yun Zhang & Others Versus Sealegs International Limited Court of Appeal of New Zealand
27-08-2019 Central Board of Secondary Education, Application Branch, Shiksha Kendra, Delhi, Represented by its Secretary Versus Manager, Bethlehem International, Vazhakulam, Ernakulam & Others High Court of Kerala
19-08-2019 International Flavours & Fragrances India Pvt. Ltd., Chennai & Another Versus State of Kerala, Represented by the Public Prosecutor, Office of the Advocate General, Ernakulam & Another High Court of Kerala
09-08-2019 Glencore International AG Versus Indian Potash Limited & Another High Court of Delhi
07-08-2019 K. Mahendran, Trincomalee Versus Deutche Welle Radio and TV International, Colombo Supreme Court of Sri Lanka
07-08-2019 San International Business School, Rep.by its Chairman, T. Jayalakshmi Versus The Director, Centre for Affiliation of Institutions, Anna University, Chennai High Court of Judicature at Madras
07-08-2019 Sphere International, a proprietorship concern through its proprietor Rakesh Jalan Versus Ecopack India Paper Cup Pvt. Ltd. High Court of Judicature at Bombay
02-08-2019 Global Institute of Fashion Technology (G.I.F.T) Versus Shaista Parveen West Bengal State Consumer Disputes Redressal Commission Kolkata
30-07-2019 M/s. Kuldip Singh Sethi & Gagan Goyal Versus Ecole Globale International Girls School High Court of Uttarakhand
29-07-2019 Bently Nevada LLC Versus Income Tax Officer, Ward-1(1) (2), International Taxation & Another High Court of Delhi
26-07-2019 Vedanta Limited Versus Global Energy Pvt. Ltd. In the High Court of Bombay at Goa
23-07-2019 Global Hospital & Research Centre Versus Municipal Corporation of Grt. Mumbai & Others High Court of Judicature at Bombay
23-07-2019 KAS International, Represented by its Proprietor, Chennai Versus The Assistant Commissioner (CT), Purasawalkam Assessment Circle, Chennai High Court of Judicature at Madras
15-07-2019 ILF Consulting Engineers Almondz Global Infra Consultant Ltd., New Delhi Versus M/s Bhagalpur Smart City Ltd, Bihar & Others High Court of Judicature at Patna
05-07-2019 M/s. Saravana International, Rep. by its Proprietor, C.R. Devanathan, Panruti Versus The Assistant Commissioner (ST), Panruti High Court of Judicature at Madras
02-07-2019 Rotomac Global Pvt. Ltd Versus Deputy Director, Directorate of Enforcement National Company Law Appellate Tribunal
01-07-2019 Anand Institute of International Studies, Through Shrimati Arun Pal Anand(Prop/Director), Madhya Pradesh Versus Sani Jaggi & Others National Consumer Disputes Redressal Commission NCDRC