Dismissed

Bajaj Auto Finance Ltd. v. Sundeep Polymers Pvt.Ltd. and Anr. and the Official Liquidator (Third Party)

Bombay HC3 Mar 2015NMS/127/2015

Case brief

AI extract

What is this about?

An applicant seeking to stay a suit against a company and its director argued the suit could proceed since the official liquidator had not applied for a stay. The court dismissed the motion, directing the trial court to await the pending company application.

What did the court decide?

Notice of Motion dismissed with no order as to costs.

Bajaj Auto Finance Ltd. Vs Sundeep Polymers… — Pension and Retirement Benefits | Bombay HC (2015)

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913-NMS-127-15-S-3972-00.DOC

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Sharayu

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 127 OF 2015

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IN

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SUIT NO. 3972 OF 2000

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Dileep Nevatia...Applicant
In the matter between
Bajaj Auto Finance Limited…Plaintiff
Versus
Sundeep Polymers Private Limited & Anr.…Defendants

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Mr. Dileep Nevatia,Applicant in person.
Mr. Snehal Shah, a/w Mr. Mitesh Naik i/b M/s. Dhru & Co., for the
Plaintiffs.

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CORAM:G.S. PATEL, J
DATED:3rd March 2015

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PC:-

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1.The Notice of Motion is filed by the Defendants. The 1st
Defendant, Sundeep Polymers Private Limited is a company of
which the 2nd Defendant is a Director. It appears that there were
some independent proceedings for the winding up of the Sundeep
Polymers Private Limited. The 2nd Defendant, appearing in
person, contested these proceedings right up to the Appeal Court. I
am informed that finally an order of winding up was passed.

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913-NMS-127-15-S-3972-00.DOC

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2.Mr. Nevatia, the 2nd Defendant, claims that the winding up
order was against “some company called Sundeep Polymers Private
Limited”. Having opposed those winding up proceedings right
through, he now claims that the winding up order was against some
other company. The basis of this submission is that there is an error
in the CIN Number of the company in that winding up Petition.

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3.Mr. Nevatia now says that the Suit should proceed against
both the Defendants or, at any rate, against him because he has also
been joined in his capacity as a guarantor.

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4.Mr. Shah, learned Counsel for the Plaintiff, points out that an
Official Liquidator has informed the Plaintiff that a winding up
order has been passed against 1st Defendant. The Plaintiff has filed
a Company Application under Section 446 of the Companies Act to
join the Official Liquidator as a party Defendant to this suit. That
Company Application is pending. Mr. Nevatia submits that the
Official Liquidator not having applied for the stay of this suit, and,
in any case, since there is no question of staying the Suit against
him personally in his capacity as the 2nd Defendant, the suit should
nonetheless proceed.

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5.Mr. Nevatia relies on the decision of the Supreme Court in
Harihar Nath & Ors. Vs. State Bank of India& Ors.1 to suggest that
this can be done. There is no dispute about this. However, it seems
to me that it would be more appropriate to await the order on the
Plaintiff’s Company Application because the 2nd Defendant is not
joined only in his capacity as a Guarantor, but also as a Director of

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1 2006(4) SCC 457

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913-NMS-127-15-S-3972-00.DOC

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the 1st Defendant. I do not see what possible prejudice can be
caused to the Defendants, if the Trial Court awaits the outcome of
the Company Application. After all, once an order of winding up
has been passed, this enures for the benefit of all creditors of the 1st
Defendant company. Further, once the company has been ordered
to be wound up, it can only be represented by the Official
Liquidator.

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6. The Notice of Motion is dismissed with no order as to costs.

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(G. S. PATEL, J.)

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Bajaj Auto Finance Ltd. v. Sundeep Polymers Pvt.Ltd. and Anr. and the Official Liquidator (Third Party)

Case brief

What is this about?

What did the court decide?

Bajaj Auto Finance Ltd. v. Sundeep Polymers Pvt.Ltd. and Anr. and the Official Liquidator (Third Party)

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

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