IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 15TH MARCH 2010 / 24TH PHALGUNA 1931 Co.Appeal.No. 12 of 2005 (A) -------------------------------------------- AGAINST THE JUDGEMENT/ORDER IN CP.39/2004 Dated 07/01/2005 .................... APPELLANT/3RD PARTY: --------------------------------------- NISKALP INVESTMENTS AND TRADING COMPANY LTD., BEZZOLA COMPLEX, V.N.PURAV MARG, CHEMBUR, MUMBAI-400 071, REPRESENTED BY ITS AUTHORISED OFFICER, SRI.R.RENJITH. BY ADV. SRI.A.M.SHAFFIQUE, SENIOR ADVOCATE RESPONDENTS / PETITIONER AND RESPONDENTS: ---------------------------------------------------------------------------------- 1. M/S. A.C. CARE MOTOR PVT. LTD., H.O.XXV/414, MANORAMA BUILDING, THRISSUR-680 001, HAVING ITS REGD. OFFICE AT 1/479, CHEERACHI, TRICHUR-680 306. 2. OFFICIAL LIQUIDATOR, HIGH COURT OF KERALA, ERNAKULAM. 3. THOMAS CHACKOLA, AGED 55 YEARS, CIVIL CONTRACTOR, CHAKKALAMATTATH HOUSE, ANNALOOR P.O., PAZHUKARA, CHALAKUDY-680 731. ADV. SRI.SHEEJO CHACKO FOR R3 SRI.V.M.KURIAN FOR R1 SRI.A.V.THOMAS FOR R1 SRI.MATHEW B. KURIAN FOR R1 SRI.K.T.THOMAS FOR R1 SRI.K.MONI FOR R2 THIS COMPANY APPEAL HAVING BEEN FINALLY HEARD ON 15/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Co.A.No.12 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 15th day of March 2010 JUDGMENT Basheer, J. This appeal is directed against the order of winding up passed by the Company Court on January 7, 2005 in Company Petition No.39 of 2004 in respect of M/S AC Care Motor Private Limited, Thrissur, which is respondent No.1 in this appeal. 2. According to the appellant, respondent No.1 company owes to it a sum of Rs.18,27,57,516/- with interest at the rate of 24% thereon as quantified by an arbitrator appointed in terms of the agreement executed between the parties. 3. Grievance of the appellant is that respondent No.3 has managed to obtain the order of winding up from the Company Court behind the back of the appellant, clearly in collusion with the company now ordered to be wound up. Respondent No.3 contended before the learned Company Judge that he was a creditor of the company which owed a sum of Rs.1,63,900/- in connection with a contract given to him for some civil works. 4. It is pointed out by the learned counsel for the appellant that the case of the company that it was in financial doldrums ever since 2002 is totally incorrect and untrue. In fact the company had laid a claim petition before the High Court of Bombay claiming a sum of Rs.45.46,61,081/- from M/S Tata Motors. The said claim petition is still pending before the said Co.A.No.12 OF 2005 :: 2 :: High Court in Suit No.3624/04. It is further pointed out that the company had remitted Rs.3,00,000/- as court fee in the above case on November 4, 2004. The company was also aware that it owed a sum of Rs.18,27,57,516/- to the appellant company. 5. We do not propose to go into those questions at this stage. Suffice it to say that there appears to be considerable force in the contentions now raised by the appellant that several relevant facts were suppressed by respondent No.1/company before the learned Company Judge. Admittedly, the appellant was not a party to the winding up petition. More importantly, the fact that the claim petition filed by the company is even now pending before the Bombay High Court was not revealed. Further, the company had not divulged the fact that a sum of Rs.3,00,000/- was paid by it as court fee before the Bombay High Court in the claim petition. It may be noticed that at that time the Company Petition for winding up was pending before the company court. The alleged debt payable by the company to respondent No.3 is stated to be only Rs.1,63,900/-. 6. It is also brought to our notice that the statutory notice of winding up was not served by respondent No.3 on the registered office of the company. Though the address of the registered office is shown as Manorama building, Thrissur, the materials available on record will show that the address of the company is elsewhere. However, the address shown in Annexure F which accompanied with the company petition shows some other address. Yet again, we do not propose to enter into that area of controversy at this stage, especially, since the learned Co.A.No.12 OF 2005 :: 3 :: counsel for the company and respondent No.3 seem to have certain conflicting claims/explanations for the apparent inconsistency. It would be desirable, if the said issue is considered by the company court. 7. There is yet another aspect of the matter. The official liquidator has taken over the assets of the company during the pendency of the Company Petition. It is on record that official liquidator had, during the pendency of this appeal, handed over the movables to the company without informing the court. Learned counsel for the company submits that the movables are still available in a godown. Yet again, we do not propose to make any observation on the said submission made by the learned counsel. In our view, the entire matter has to be reconsidered by the company court after giving sufficient opportunity to the parties. 8. Keeping in view all the above aspects of the matter, we are satisfied that the impugned order is liable to be set aside. We do so. The appeal is allowed. The case is remitted to the Company Court for fresh disposal in accordance with law. It is made clear that it will be open to the parties to adduce further evidence in the matter, if they choose to do so. We hasten to add that the observations made by us in this judgment are only our prima facie impressions and nothing more. Appeal is disposed of in the above terms. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE jes