DSS MOBILE COMMUNICATIONS LTD Vs. MOTOROLA INDIA LTD

JUDGEMENT

(1.) AGGRIEVED by the order passed by the learned Company Judge dated 30. 7. 2004, the present company appeal has been preferred by the appellant. Mr. Rustogi, learned counsel for the appellant has contended that in view of the fact that the winding up petition is a representative petition and the order of winding up in terms of Section 447 and 441 (2) of the Companies Act operate in favour of all the creditors and the contributories of the company, the impugned order suffers from illegality as the learned Company Judge has not directed the respondent to deposit an amount of Rs. 5. 24 crores before the Court. Learned counsel appearing for the appellant laid reliance on a Single Bench decision of the Bombay High Court in Castwell Engineering Corporation Vs. Bomay Castwell Engineering Pvt. Ltd. 1984 (55) Company Cases 75. It was contended by the learned counsel for the appellant that the learned Company Judge failed to appreciate that the payment of Rs. 5. 24 crores made by the appellant to the respondent during the pendency of the winding up petition was not a transaction to be contemplated as a transaction in the ordinary course of business. Winding up petition was a pressure tactics for the recovery of its dues by filing winding up petition. It was contended that reliance placed by the learned Company Judge on Monark Enterprises Vs. Kishan Tulpule and Ors. 1992 (74) Company Cases 89 does not as a matter of fact, address to the present case and in any event of the matter the said case operate in a different direction and the proposition propounded by the appellant based on Castwell Engineering Corporation's case (supra) was applicable as the order of payment was made during the pendency of the winding up proceedings in the Company Court whereas in the case of Monark Enterprises (supra) it was a case which was prior to filing of winding up petition. On the basis of the aforesaid contention, learned counsel for the appellant has contended that the order need to be set aside rejecting the application of the appellant for return of the amount of Rs. 5. 24 crores which was paid to the respondent during the pendency of the winding up proceedings. On the other hand, learned counsel for the respondent has vehemently contended that the present appeal as well as application filed by the appellant before the learned Company Judge [ca 1393/2003] was an abuse of the process of the court. As a matter of fact, the appellant has gone before the Division Bench of this Court twice against the order passed by the learned Company Bench. It was contended that at the first instance when the learned Company Judge passed the order on 16. 7. 2002, he observed as follows:-

(2.) IN the same order the learned Company Judge has also recorded further in the order :-

(3.) THEREAFTER the Company Judge passed the order of winding up of the company. That order was impugned by the appellant by filing a company appeal No. 32/2002 which was disposed of on 23rd August, 2002 in the following terms:-