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Judgment
ORDER
The instant proceedings in the company appeal, under Section 421 of the Companies Act, 2013, emanates from an order that, has been passed by the Ld. NCLT, Bengaluru Bench, in proceedings under Section 271-272 of the Companies Act, 2013.
The consequential effect of the impugned order had been, that the direction had been issued for winding up of the company, after taking necessary action as prescribed under law.
There are various facets, which are attempted to be argued by the Ld. Counsel for the Appellant, who happens to be the Respondent in the proceedings of CP No. 87/BB/2022. He questions the very propriety of the impugned order on various facts, including one with regards to the finding on the financial status of the Respondent Nos. 1 & 2. What bearing the financial status would have quo the impugned order it may not be a chapter, which could now be opened to be ventured.
But so far as the present controversy which is being agitated in an appeal before this Appellate Tribunal, the question, which falls for our consideration is that, as to whether at all under the given set of circumstances, particularly, when the Ld. Tribunal in its hearing, which was held on 27.06.2024, has recorded that the Respondents themselves have accorded their consent by giving their willingness, that in case the Ld. Tribunal proceeds to direct the paper publication for the initiation of the winding up process, there would not be any objection as such. The following observations has been made therein: -
"e. During the hearing held on 27.06.2024, the Ld. Counsel for the respondent had submitted that he has no Objection for Publication of Advertisement regarding Winding up. Accordingly, this Authority had directed for paper publication and that the petitioner was directed to file the proof of such publication and objections received, if any. In Compliance, an affidavit was filed vide Dy no 5069 on 29.08.24 regarding the paper publication.
f. On 19.12.24, the Respondent during the hearing requested for appointing provisional liquidator. He was directed to file a Memo in this regard".
The aforesaid "no objection" has been recorded by the Ld. Tribunal in the proceedings which was held on 27.06.2024, which is reflected in the impugned order itself. In subsequent proceedings, which were carried out during the hearing, held on 19.12.2024, a request for appointment of the provisional Liquidator was also made and that was too directed, which shows that the impugned order happens to be a consenting order.
When the Appellant himself in proceedings before the Ld. Tribunal, had assured by giving "no objection" for carrying out the publication for advertisement regarding the winding up, clearly shows the inclination of the Appellant that he had no principal objections for the inception of the proceedings of winding up. It has been observed that owing to, said no objection given by the Appellant, the Ld. Tribunal felt it necessary to direct the issuance of a paper publication, and thereafter the same was to be taken on record, to proceed further in the process by appointing of the liquidator. Even at the stage of appointment of the liquidator, which was the proceedings carried by the Ld. Tribunal on 19.12.2024 after carrying out the publication on 29.08.2024 in compliance of the earlier order dated 27.06.2024, it was again the request of the Appellant herein, who was the Respondent to the proceedings, who consented for appointing the provisional liquidator, and in that regard, he has filed a specific memorandum before the Ld. Tribunal.
In these eventualities, if the Ld. Tribunal has bonafidely acted on the undertaking given by way of no objection, by the Appellant, subsequently passing of the impugned order of directing the winding up of Responent No. 1. This cannot now be questioned by the Appellant, before this Appellant Tribunal by filing of an appeal. It is not the case of the Appellant at any point of time, that the so-called no objection as observed in para (e) and (f) of the impugned order was obtained under duress. Hence, it was a free and fair consent, which was actually extended by the Appellant in writing for giving no objection for publication for winding up, and rather requesting for appointment of the provisional liquidator. Hence, at this stage now the Appellant cannot make a somersault, contending that the order directing for winding up of the Respondent No. 1, is bad in the eyes of law, because it will amount to be a solicited order by the Appellant himself, who was the Respondent to the proceedings.
In that eventuality, the direction given by the Ld. Tribunal for winding up the companies doesn’t suffer from any procedural or legal error when the Appellant himself has expressed his no objection.
Hence, this 'company appeal' stands 'dismissed'. However, it will be without prejudice to the rights of the Appellant to raise all the contentions when if he chooses to put a challenge to the final order of winding up of the Respondent No. 1.