Case Note & Summary
The appeal arose from an order dated 22/02/2017 passed by a learned Single Judge of the Bombay High Court, which allowed Company Application No.448 of 2016 filed by the respondent no.2 (ex-director of respondent no.1 company) and recalled the winding-up order dated 14/11/2014 passed in Company Petition No.276 of 2011. The appellant, State Trading Corporation of India Ltd., had filed the winding-up petition against Indo Bonito Multinational Ltd. (respondent no.1) for recovery of outstanding dues of Rs.215,11,40,300/- under an agreement and addendum MOU. A statutory notice dated 24/12/2010 was issued, but the company failed to pay, leading to the filing of the winding-up petition. The winding-up order was passed on 14/11/2014. More than two years later, on 22/11/2016, the ex-director filed an application for recall of that order. The learned Single Judge allowed the application, leading to the present appeal. The Division Bench held that the ex-director had no locus standi to file the recall application, as the company itself was the proper party. Additionally, the application was barred by delay and laches, as it was filed after a significant delay without any explanation. The court also noted that the ex-director was aware of the proceedings but did not take any steps earlier. Consequently, the appeal was allowed, the order of the learned Single Judge was set aside, and the winding-up order dated 14/11/2014 was restored.
Headnote
A) Company Law - Winding-up - Recall of Order - Locus Standi - An ex-director of a company does not have locus standi to file an application for recall of a winding-up order passed against the company, as the company itself is the proper party to challenge such order. (Paras 7-10) B) Company Law - Winding-up - Recall of Order - Delay and Laches - An application for recall of a winding-up order filed after more than two years from the date of the order is barred by delay and laches, especially when the applicant was aware of the proceedings and did not take any steps earlier. (Paras 11-12) C) Company Law - Winding-up - Recall of Order - Maintainability - The application for recall of the winding-up order was not maintainable as it was filed by an ex-director without any authority from the company, and the company itself had not challenged the order. (Paras 7-10)
Issue of Consideration
Whether the learned Single Judge was justified in recalling the winding-up order dated 14/11/2014 on the application of an ex-director of the respondent company, and whether such application was maintainable and not barred by delay and laches.
Final Decision
The appeal is allowed. The order dated 22/02/2017 passed by the learned Single Judge is set aside. The Company Application No.448 of 2016 stands dismissed. The winding-up order dated 14/11/2014 passed in Company Petition No.276 of 2011 stands restored.
Law Points
- Recall of order
- Locus standi
- Delay and laches
- Winding-up petition
- Companies Act
- 1956
