1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. COMPANY APPLICATION NO.1313 OF 2009 IN COMPANY APPLICATION NO.1563 OF 2009 IN COMPANY PETITION NO.460 OF 2005 Sharp Industries Ltd. ...Petitioner. Vs. The Federal Bank Ltd. ...Respondent. .... Mr.M.M. Vashi i/b. M/s.M.P. Vashi & Asso. for the Applicant in C.A. 1313/09 and for respondent in CA 1563 of 2008. Mr.Ail Menon for the Applicant in C.A.1553/08 and Respondent in C.A.1313 of 2009. ..... CORAM : DR.D.Y.CHANDRACHUD, J. December 18, 2009. P.C. The Company Application has been taken out for recalling the order that was passed by this Court on 4th December 2009. By the order of the Court, a Company Application taken out by the Federal Bank Ltd., seeking an order of winding up under Section 392(2) of the Companies’ Act, 1956 was made absolute. On 17th November 2005, a scheme of compromise and arrangement was sanctioned by this Court under Section 391 of the Companies’ Act, 1956. The 2 Federal Bank Ltd. had lent and advanced monies under diveerse credit facilities to the Company. The scheme acknowledged the dues of the Bank in the amount of Rs.330 lakhs. The dues were to be repaid by (i) A zero coupon loan in the amount of Rs.142 lakhs (equity shares of Rs.56 lakhs) and (ii) Zero coupon non convertible debentures of Rs.147 lakhs. While passing an order of winding up on 4th December 2009, this Court recorded that the Company Application had been adjourned repeatedly on at least six occasions and that even on the previous date of hearing, an adjournment was granted as a last and final indulgence since the Learned Advocate stated that no responsible officer of the Company was there to give him instructions. This Court observed that it was evident that the Company has made no serious efforts to pay the dues outstanding of the Bank. In the application for recalling the order of this Court, it has been submitted that certain facts which would have a material bearing on the issues before the Court, could not be placed before the 3 Court when the order was passed. It has been stated that ARCIL took physical possession of the factory premises at Aurangabad on 18th November 2009. The Company moved a Division Bench of this Court in a Writ Petition, in which on 25th November 2009, an agreement was arrived at, by which the amount payable to ARCIL was increased from Rs. 8.5 to Rs.10 crores. The Company was directed to pay an amount of Rs.2 crores on or before 2nd December 2009, while the balance was payable by 15th January 2010. Counsel appearing on behalf of the Company has stated before the Court that as a matter of fact, the amount payable to ARCIL of Rs.2 crores as directed has been paid. A further amount of Rs.3 crores is to be paid by 31st December 2009 and Rs.5 crores by 15th January 2010. In the Company Application, it has been stated that the Company has engaged more than 200 workers. In paragraph 9 of the Company Application, it has been stated that the Company is ready and willing to pay the balance of Rs. 1.95 crores to Federal Bank Ltd on or before 15th March 2010. The prayer before the Court is for recalling of the order dated 4th December 2009, on the ground that the Junior Advocate, who appeared before the Court, was not fully apprised of the fact and was not able to place all 4 the relevant facts before the Court. Counsel appearing on behalf of the Federal Bank Ltd., on whose application, an order of winding up was passed, has stated before the Court that subject to the Court recalling the order dated 4th December 2009, the Bank is entering into Consent Terms with the Company under which the dues of the Bank in the sum of Rs. 1.95 crores are to be repaid by 15th March 2010 and that post dated cheques have been given by the Company for that purpose. Having regard to the circumstances, which are set out in the Company Application and particularly since it has been submitted that all the facts could not be placed before the Court by the Junior Counsel, who had appeared on 4th December 2009, it would be in the interests of justice to recall the order.This is particularly so since Federal Bank Ltd. at whose behest the order was passed, has informed the Court that it does not press the order of winding up in view of the fact that the Company has agreed to pay its dues at this stage. In the circumstances, the order passed by this Court on 4th December 2009 is recalled. 5 Company Application No.1313 of 2009 is made absolute in terms of prayer clause (a). ......