SHAILENDRA KANH BEHARILAL Vs. SURAT DYES

JUDGEMENT

(1.) This is an application moved by the applicant (original respondent no.1) seeking review of order dated 7/5/2004 made in Company Application No.42 of 2004.

(2.) The Court by aforesaid order dated 7/5/2004 came to the conclusion that provisions of Section 488(2) of the Companies Act,1956 (hereinafter referred to as 'the Act') have not been complied with and, hence, the consequence provided in sub-section (5) of Section 488 of the Act would follow. Accordingly on account of failure to comply with mandatory requirements of Section 488(2) of the Act the members' voluntary winding up resulted in winding up as creditors' voluntary winding up. The Court also issued further directions.

(3.) The present applicant carried the matter in appeal being O.J.Appeal No.30 of 2004. The learned Counsel for the applicant herein submitted before the Division Bench of this Court that the finding recorded in the aforesaid order dated 7/5/2004 that the declaration under Section 488(2) of the Act had been submitted with the office of the Registrar of Companies only on 29/7/2003 was erroneous. In support of the said contention the learned Counsel relied upon affidavit dated 1/7/2004 filed by Shri Dhiren R.Dave, Company Secretary and a copy of letter dated 29/6/2003 along with rubber stamp acknowledgment of the office of Registrar of Companies, Gujarat at Ahmedabad. The learend Counsel in reply to the query raised by the Division Bench as to why the same was not produced before the Company Court submitted that the matter was heard on 6th & 7th May,2004 and the learned Advocate appearing on behalf of the applicant had asked for time but the Company Court did not grant any time and proceeded to pass the order on the basis of the record produced by the learned Counsel representing Registrar of Companies. The said statement made by the learned Counsel for the applicant was contested on behalf of respondent no.1 herein (original petitioner) and in the circumstances the appeal was withdrawn on behalf of the applicant with a liberty to appraoch the Company Court by way of Review Application. It is in the aforesaid circumstances that the present application has been moved.