1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION COMPANY APPLICATION NO. 182 OF 2010 IN COMPANY PETITION NO. 221 OF 2003 Sandvik Asia Pvt. Ltd. & Anr. ... Petitioner And Shri Ratna Vijay Dadhe. ... Applicant Vs 1. Official Liquidator of M/s.Dadhe Constructions Pvt. Ltd. & anr. ...Respondents Mr. Prathamesh Bhargude i/b Sugandh Deshmukh for the Applicant. Mr. Amit Kanani i/b Hariani & Co. for the Respondents. Dr. T. Pandian – Deputy Official Liquidator present. CORAM : S.J. VAZIFDAR, J. DATED : 13TH JULY, 2010. P.C. : 1. This is an application for a recall of an order dated 9th August, 2007, winding up the company. The Company Petition was presented on 8th October, 2002. The final order winding up the company was passed on 9th August, 2007. 2 2. It is submitted that the petitioning creditor and the Respondent- company have settled all their disputes. The Respondent has paid the Petitioner, an amount in full and final satisfaction of his claim. On this basis, the application is made for recalling the winding up order. 3. Relying upon the judgment in G.T. Swamy vs. Goodluck Agencies, (1990) 69 Com. Cases, 820, it is submitted that this court has the power/jurisdiction to recall the order winding up a company. I will assume that the company court has the power to recall the order. I will further assume that the company court has the power to recall an order of winding up even without issuing advertisement informing the creditors and all other concerned persons the fact of such an application. In the facts of this case, the power ought not to be exercised. The Petitioner may be satisfied with the settlement. However, once a petition is admitted and advertised, the order enures not for the benefit of the petitioning creditor alone, but to the general body of creditors. The situation crystallizes even further upon the final order of winding up. Apart from anything else, an order recalling such an order could well render the claims of several 3 creditors, who were entitled to rely on such orders, being barred by limitation. They would otherwise be entitled to prove their claims in the winding up proceedings. 4. In G.T. Swamy’s case, there were only two creditors who had no objection to the application. It is important to note that in the present case, the claims have not even been invited by the Official Liquidator. It is not certain as to who the creditors are and the extent of the claims against the company. In such circumstances, merely because the Petitioners claim has been settled, would not justify an order recalling an order winding up a company. 5. In the present case, in fact, even publishing a notice to the effect that the petitioning creditor’s claims have been paid and that the present Company Application has been filed would not be a sufficient safeguard against the creditors of the company. The Applicant has not even indicated on any rational basis, the extent of the claims against the company. The statement of affairs has not been filed by any of the Directors. The Applicant himself was a former Director of the company. Even he has not filed a statement of affairs. 4 6. At the cost of repetition, I have decided this application on the basis that the company court has the jurisdiction to recall an order winding up a company. Considering the view that I have taken on the present application, it is not necessary to decide this point. 7. In the circumstances, as of now, at least this application cannot be granted. After the claims are made and received by the Official Liquidator and after the Directors have complied with their obligations regarding filing a statement of affairs, the Applicant is at liberty to take out a fresh Company Application. 8. With the above clarification, the Company Application is dismissed.