IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION COMPANY APPLICATION NO.1058 OF 2008 IN COMPANY PETITION NO.120 OF 1981 In the matter of the Companies Act, I of 1956. AND In the matter M/s. Vibro Chemi Machinery Pvt. Ltd. (in liquidation) M/s. Swaraj Kumar Mittal & another ………..…… Applicant v/s. The Official Liquidator of M/s. Vibro Chemi Machinery Pvt Ltd. (in liquidation) & another ………………. Respondent Shri B. B. Parekh – Advocate for the Applicants. Shri P. Ramarao, Official Liquidator present. CORAM: S. J. Kathawalla, J. DATE: 8th September, 2009 PC: 1. Heard learned counsel for the parties. 2. The Applicants have sought an order for staying permanently the order of winding up dated 13th June, 1985. They have further prayed for directing the Official Liquidator to handover forthwith all the assets effect record, documents, property and any other asset of any kind whatsoever including any amount lying to the credit of the Company in liquidation in the books of respondent to be handed over forthwith to enable the applicant to resume business operation of the Company. 3. The Company was wound up by an order dated 13th June, 1985. 4. The Applicants have in the affidavit dated 13th January, 2004 in support of abovementioned application set out the liability of the Company to be discharged by them, more particularly set out in paragraphs 5 to 10 of the said affidavit. 5. The Official Liquidator has already filed his Affidavit in reply dated 12th July, 2004 in the above matter stating therein that if the Applicants discharge all their liabilities of creditors of the Company (in liquidation) after inviting claims and adjudication then only the winding up matter can be stayed, so that Company (in liquidation) could restart its activity and reemploy ex-workers. 2 6. The Official Liquidator in response to order dated 16th October, 2008 has filed his further report on 22nd October, 2008. The Official Liquidator was directed to furnish the details about financial status of the Company (in liquidation). In the said affidavit he has also given the details of su-motto claim received by them. 7. The Official Liquidator has further stated in his report that in view of the above, the Applicants vide order dated 7th August, 2008 directed the Applicants to arrange for publication in newspapers for inviting objection if any, in respect of Company at the cost of Applicant. 8. The Official Liquidator has stated in the said report that they have not received any claim in the above matter. The Official Liquidator has also reported the liability as per the statement of affairs filed by Ex-Director as on the date of winding up i.e. 13th June, 1985. It has also reported that the sum of Rs.38,761.70 paise is lying to the credit of the Company (in liquidation) as on 2nd September, 2008. The Official Liquidator has also submitted that he has also taken out Company Application No.213 of 1990 i.e. 3 misfeasance summons vide the Section 543(i) of the Companies Act, 1956 and the same is pending. 9. The Official Liquidator has also prayed for directing the Applicants to file an undertaking in this Hon’ble Court with the copy to Official Liquidator about the future claims that may be received and same shall be settled by the Applicants and the Official Liquidator shall not be liable for the same. 10. The Applicants have filed the Affidavit in rejoinder dated 18th November, 2008 of Mr. Swaraj Kumar Mittal stating therein that the Applicants are willing to discharge all the liabilities of the Company by reiterating the liability of the Company as on date of winding up order as also reflected in Statement of Affairs and also reported by the Official Liquidator in his report dated 22nd October, 2008. 11. It has also stated that the Applicants are willing to discharge all the liabilities of the Company, hence, the Company may not be kept under liquidation perpetually. Upon the perusal of the entire material placed on records and taking overall view of the matter, I proposed to pass the following order; 4 (a) The Applicant to deposit the following amounts with the Official Liquidator within 4 weeks from the date of this Order and upon the said deposit this shall become operative: (i) a sum of Rs.38,038/- due to the Preferential Creditors as stated in paragraph 5(2) of the Official Liquidator report dated 22nd October, 2008. (ii) a sum of Rs.42,829.25 paise due to M/s Mulund Rai Vanarasi & Co. (iii) a sum of Rs.2,09,122.05 paise due to Jawahar Co-operative Industrial Estate. (iv) A sum of Rs.5,000/- due to Mr. Mukesh Chokshi. (b) The Applicants to give intimation by Registered Post Acknowledgement Due to the aforesaid Creditor of their having deposited the aforesaid amount deposited with the Official Liquidator with liberty to claim therefrom and file such acknowledgement with the Office of the Official Liquidator. 5 (c) Further ordered that if the amount so deposited remain unclaimed after expiry of 3 months from the dated of the first intimation, the Applicant shall give further notice by Registered Post Acknowledgement Due giving 30 days time to enable them to claim the said amount from the Official Liquidator and shall file acknowledgement or unserved postal communication if any with he Official Liquidator and after the service of 2nd Notice if the amount remains unclaimed the Applicant can apply for refund of the said amount and the Official Liquidator shall refund such unclaimed amount to the Applicant. (d) The Applicant shall executed an Indemnity favouring the Official Liquidator Rspondent that by virtue of the present order if any further enforceable claim is made against the Official Liquidator on behalf of the Company (in liquidation) the Applicant shall keep the Official Liquidator indemnified of any such contingency. (e) In view of the serious illness of the 2nd Applicant, the Official Liquidator shall accept the Indemnity to be 6 executed by the Applicant No.1 Mr. Swaraj Kumar Mittal on behalf of the Applicant No.2 Mr. Surendra Kumar Mittal. (f) The Official Liquidator do retain a sum of Rs.10,000/- from the amount lying to the credit of the Company (in liquidation) while refunding the same. (g) Accordingly the Company Application No.1058 of 2008 is made absolute in terms of prayer clause (a), (b) and (c) on above conditions. (h) In view of the above misfeasance summons being Company Application No.213 of 1990 is also ordered to be disposed off with no order as to cost. (i) The Applicant to deposit the aforesaid amounts with the Official Liquidator within 4 weeks from the date of this Order and upon the said deposit this shall become operative. 12. All concerned authorities to act on a copy of this order and the Registrar of Companies , Maharashtra, Mumbai shall take on record such authenticated copy. (S.J. Kathawalla, J) 7