NAVINCHANDRA PUNAMCHAND Vs. RASILABEN NAVINCHANDRA JASWA

JUDGEMENT

(1.) M /s Prefect Packaging a Private Limited Company, filed company Petition No.563 of 1983 for winding up of the Company - Oriental Pharmaceuticals Industries Ltd. It appears that during the pendency of this winding up proceeding, there was compromise between the petitioning Creditor and the company-Oriental Pharmaceuticals Industries Ltd. and the petitioning creditor sought to withdraw the petition. As such, public notice was given and in Pursuance of that one Navinchandra Punamchand came forward and applied for his substitution in place of M/s Prefect Packaging as Creditor, for pursuing the winding up proceeding. The said Navinchandra Punamchand is a share holder of the company sought to be wound up. By order dated 1st August 1984, this Court allowed prayer of Navichandra Punamchand and substituted him in place of the petitioning creditor M/s Prefect Packaging. That order came to be challenged in Civil Appeal No.787 of 1985 filed by the Company before Division Bench of this Court, when this fact was brought to the notice of this Court. Agarwal, J. directed to stand over Company Petition No.563 of 1983 sine die till disposal of the appeal. However, in the meantime, Notice of Motion No.1848 of 1985 was taken out by the company in the aforesaid appeal in September, 1985, for stay of further proceedings in the winding up petition. By order dated 13th December, 1985, the Division Bench of this Court passed order of stay to the effect that :

(2.) THEREAFTER , on 22-11-1996, clearances in respect of purchase transaction by TELCO has been obtained and on 11th February 1997, TELCO made payment of Rs.15.75 crore to the Company and thereafter on 19th May 1997, conveyance in respect of the aforesaid property came to be made and lodged for registration.

(3.) ON behalf of the applicant in Judge's Summons No.782 of 1996, this Intervener's application has been strongly opposed. I have heard Mr.Janak Dwarkadas for the Intervener - Applicant and Mr.Parikh for the Company and Mr.Zaiwala, for the applicants in Judge's summons (heirs of Navinchandra Punamchand). According to Mr.Zaiwala for the applicants in the Judge's Summons, TELCO has no locus-standi to intervene in the matter and oppose the Judge's summons for bringing the applicants on record as legal representatives of Navinchandra Punamchand. It is contended that they are purchasers during the pendency of the proceedings and, therefore, not concerned with the company application for winding up. It is contended that the Company has already parted with possession and conveyance is duly lodged for registration and has opposed this judge's Summons merely to enable the Applicant _ Intervener to come on record. As against this, Mr.Dwarkadas for the Intervener - Applicant - TELCO submitted that at the time when agreement of sale of the property of the Company was entered into, petitioner Navinchandra Punamchand was dead and proceedings in Company Petition No.563 of 1983 stood abated and no proceeding was pending and that is how, transaction entered into between the company and TELCO came to be proceeded further and was completed. That way, mere filing of Judge's summons by the applicants to bring them on record as legal representatives, cannot revive the proceedings and unless abatement is set aside and delay is condoned, proceeding of Company Petition No.563 of 1983 cannot be said to be pending. He submitted that right of the Intervener - TELCO is likely to be effected by any order passed in the Judge's Summons and, therefore. Intervener is required to be added as a party to the Judge's Summons. Mr.Parikh for the Company submitted at that one time, when the matter was heard. Mr.Zaiwala for the Applicants in Judge's Summons had contended that in view of the stay order passed by the Appellate Court, all proceedings including hearing and passing order on Judge's Summons are stayed and consequently, interveners application must be deemed to be stayed and this Court cannot proceed with this matter. However, today, he has brought to my notice the decision in Madanlal Agarwal vs. Smt.Kamlesh Nigam - AIR 1975 M.P. 132. What this decision has laid down is that during the pendency of a stay order passed by appellate or revisional Court, although the trial Court or the Court below may not have any jurisdiction to proceed with the trial of the suit on merits, it can certainly take such other steps which are collateral or which may be protective or which would be for the purpose of keeping the lis alive and all such steps, such as any application under O. 22 R. 3 or 4 or any application under O.39 R. 1 or 2 or an application under O. 40 R. 1 or an application under O. 38 R. 5 of the Code of Civil Procedure would be maintainable in the trial Court inspite of such stay order. Therefore, order of attachment passed by Court under O. 38 R. 5 of the Code of Civil Procedure during the pendency of the stay order is not without jurisdiction. In this behalf, reliance is placed on decision of the Madras High Court in AIR 1953 Mad.492.