WINSOME TEXTILE INDUSTRIES LIMITED Vs. MANGLA COTEX LIMITED

JUDGEMENT

(1.) This order shall dispose of CA No. 364 of 2006 titled as an application under Order 9 Rule 13 read with Section 151 of the Code of Civil Procedure, 1908, and 466 of the Companies Act, 1956 with prayer to stay the operation of the impugned order dated 16.01.2004 and 30.03.2006; and CA No. 835 of 2009 titled as application under Section 151 of the Code of Civil Procedure, 1908 read with Section 5 of the Limitation Act for condonation of delay of 2 years 17 days in seeking review of the order dated 16.01.2004 and 71 days of delay in seeking review of the order dated 23.03.2006 till 02.06.2006 i.e., date of filing the CA No. 364 of 2006.

(2.) The brief facts leading to the filing of the aforesaid applications need to be stated first. One Winsome Textile Industries Limited, respondent No. 1 in CA No. 835 of 2009, filed a petition for winding up of M/s Mangla Cotex Limited, a company incorporated under the Companies Act, 1956, having its registered office at Ludhiana. In the aforesaid petition for winding up by a unsecured creditor, the respondent company was served and has put in appearance before the Company Court on 13.03.2003 through Shri A.K. Rampal, Advocate on the basis of power of attorney signed by Mr. Sudhir Kumar Jain, present petitioner acting as Managing Director of the respondent company. No reply was filed on behalf of the said respondent though many opportunities were granted at the request of learned Counsel appearing on behalf of the company. The winding up petition was ordered to be admitted on 31.10.2003. The factum of admission was published in the "Indian Express" Chandigarh Edition;

(3.) On 2.5.2006, an application (CA 364 of 2006) was filed by Sudhir Kumar Jain, ex-Managing Director of the company, for stay of operation of orders dated 16.01.2004, and 30.3.2006 (sic 23.3.2006). In the said application, though titled as "application under Order 9 Rule 13 read with Section 151 of the Code of Civil Procedure, 1908 and 466 of the Companies Act", but there is no averment to the effect that there was any sufficient cause with the respondent company or its Managing Director for not causing appearance before this Court on any of the dates fixed in the petition for winding up preferred by unsecured creditor. Notice of the said application was issued to the Official Liquidator and to the petitioner creditor for 18.05.2006. It was on 18.05.2006, learned Counsel appearing for unsecured creditor stated that the creditor has settled its claim and has no objection if the order of winding up is recalled. It was also stated that the petitioner will withdraw the complaints filed by it under Section 138 of the Negotiable Instruments Act and CP No. 416 of 2002. Mr. Malik, learned Counsel appearing for the present petitioner, stated that the management is ready and willing to settle the claim of the Official Liquidator towards litigation expenses incurred by him after the order of winding up was passed. On the aforesaid date, notice was also issued to the secured creditors - M/s Canara Bank, Ludhiana and IDBI Chandigarh for 25.5.2006.