SBI GLOBAL FACTORS LTD Vs. MINAR INTERNATIONAL LIMITED

JUDGEMENT

(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 dtd. 16/3/2012 and the Official Liquidator was accordingly appointed as liquidator of the Company. By an Order dtd. 17/9/2013 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 Sec. 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 15/5/2018, 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 Sec. 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 Sec. 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 Sec. 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.