L R RANGAIER AND SONS Vs. COFFEE BOARD

JUDGEMENT

(1.) This appeal under S.483 of the Companies Act, 1956 is directed against the order of the learned company Judge allowing substitution of a creditor for original petitioner under R.101 of the Companies (Court) Rules, 1959 (hereinafter referred to as 'the Rules'). The said order was passed in Application No. 96 of 1996 in C.P. No. 8 of 1990 [in the matter of L. R. Rangaier and Sons Pvt. Ltd. (In liquidation)]. The company (in liquidation) respondent No. 4 in the Application is the appellant and the first respondent Coffee Board is the applicant. The appellant Company was incorporated on 16th September 1954 with 950 shares of Rs. 500 each as paid up capital.

(2.) The company petition No. 8 of 1990 was filed by two creditors seeking to wind up the company under S.433 and 434 of the Companies Act, 1956 (hereinafter referred to as 'the Act'). In this company petition the Coffee Board has filed an application No. 96 of 1996 praying to substitute it as petitioner thereon. The above company petition was originally filed on 29th March 1990 and the company court appointed a provisional liquidator on 4th April 1990. When the Coffee Board came to know of the initiation of the liquidation proceedings it got impleaded in the company petition and obtained permission from the court to remove coffee kept in the godown of the company. In view of the objection from the workers against the removal of coffee an Advocate Commissioner was appointed for supervising the curing operation. When the Advocate Commissioner inspected the godown it was revealed that 17 tonnes of coffee kept in the godown worth Rs. 43,52,977-64 was found missing. Thereafter the Coffee Board filed a claim statement showing the adjustment of the amounts due to the company from the Coffee Board, which according to the applicant would come to Rs. 61,81,049.24.

(3.) There were several revival schemes to revive the company. Those revival schemes were not accepted by the company court for various reasons. However the company paid the amount due to the applicants in the above company petition, in consequence of which the applicants abandoned the company petition as they were not interested in prosecuting the same. At that time the provisional liquidator filed a statement before court along with the list of creditors prating for appointment of an auditor to look into the accounts of the company. The official liquidator also wanted to advertise the matter inviting claims from various creditors. Accordingly the court appointed an auditor to assess the amount due to the Coffee Board and also the amount said to be due from the Coffee Board. The company court directed the Chartered Accountant appointed by it to assess the claim of the Coffee Board. In that situation it has become absolutely necessary to prosecute the winding up proceedings at the instance of the Coffee Board by subsuming it in the place of the petitioners in C. P. No. 8 of 1990 With that and in view Coffee Board filed Application No. 96 of 1996. 'After the enquiry, the learned company Judge allowed the application and ordered to substitute Coffee Board as a petitioner in the Original Petition. Being aggrieved by the aforesaid order this appeal has been filed by the company in liquidation.