The High Court dismissed an appeal against the admission of a company winding-up petition and appointment of a provisional liquidator, rejecting the appellant's contention to reopen facts or raise fresh objections regarding pending DRT proceedings.
Appeal dismissed; Notice of Motion disposed of.
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nsc.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL NO.46 OF 2016 IN COMPANY PETITION NO.565 OF 2014 WITH
NOTICE OF MOTION (L) NO.214 0F 2016
M/s.Prahladrai Fabrics Limited ...Appellant
(Orig. Respondent)
Versus
The Shamrao Vithal Co-op. Bank Limited ...Respondent (Orig. Petitioner)
Mr.Abhay Khandeparkar a/w Mr.Jayesh Patil, Mr.Devang Khira, for the Appellant.
Dr.Birendra Saraf a/w Mr.Nikhil Rajani i/b M/s.V.Deshpande & Co., for the Respondent.
Mr.Anurag Gokhale, for the Official Liquidator.
CORAM : V. M. KANADE & REVATI MOHITE DERE, JJ.
DATE : 2nd FEBRUARY, 2016
P.C. :
and the learned counsel appearing on behalf of the respondent.
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company would be sold and the debts of all the banks would be paid by the appellant. It is submitted that the appellant had not filed a reply on merits. It is submitted that therefore the appellant be permitted to file a reply on merits and thereafter the learned Single Judge should decide whether an order admitting the petition should be passed or not.
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earlier demand notice.
1 1982(2) SCC 463
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Court, Shri A. K. Sen, who appeared for the State of Maharashtra before the High Court and led the arguments for the respondents there and who appeared for Shri Antulay before us intervened and protested that he never made any such concession and invited us to peruse the written submissions made by him in the High Court. We are afraid that we cannot launch into an inquiry as to what transpired in the High Court. It is simply not done. Public Policy bars us. Judicial decorum restrains us. Matters of judicial record are unquestionable. They are not open to doubt. Judges cannot be dragged into the arena. "Judgments cannot be treated as mere counters in the game of litigation". (Per Lord Atkinson in Somasundaram Chetty v. Subramanian Chetty, AIR 1926 PC 136 : 99 IC 742). We are bound to accept the statement of the judges recorded in their judgment, as to what transpired in court. We cannot allow the statement of the judges to be contradicted by statements at the Bar or by affidavit and other evidence. If the judges say in their judgment that something was done, said or admitted before them, that has to be the last word on the subject. The principle is well settled that statements of fact as to what transpired at the hearing, recorded in the
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judgment of the court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent, upon the party, while the matter is still fresh in the minds of the judges, to call the attention of the very judges who have made the record to the fact that the statement made with regard to his conduct was a statement that had been made in error. (Per Lord Buckmaster in Madhu Sudan Chowdhri v. Chandrabati Chowdhrain , AIR 1917 PC 30 : 42 IC 527). That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. Of course a party may resile and an appellate court may permit him in rare and appropriate cases to resile from a concession on the ground that the concession was made on a wrong appreciation of the law and had led to gross injustice; but, he may not call in question the very fact of making the concession as recorded in the judgment”.
behalf of the appellant to contend that the debts payable to the respondent – bank is not ascertained.
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the petition and has appointed a provisional liquidator. Admittedly, the appellant - company has not given any reply and a presumption is raised about the inability on the part of the company to pay the debts. We are therefore not inclined to interfere with the order passed by the learned Single Judge.
and is accordingly disposed of.
REVATI MOHITE DERE, J. V.M. KANADE, J.
2 issues framed by the court
Whether the High Court was correct in admitting the company winding-up petition despite pending DRT proceedings and lack of a filed reply by the company.
Whether the appellant could resile from the concession recorded by the learned Single Judge regarding the debt amount.
Colour shows how this judgement treated each authority
State of Maharashtra v. Ramdas Shrinivas Nayak and AnotherFollowed¶29
State of Maharashtra v/s Ramdas Shrinivas Nayak and Another 1982(2) SCC 463 · Who else cites this
Somasundaram Chetty v. Subramanian ChettyFollowed¶29
Somasundaram Chetty v. Subramanian Chetty, AIR 1926 PC 136 · Who else cites this
Madhu Sudan Chowdhri v. Chandrabati ChowdhrainFollowed¶29
Madhu Sudan Chowdhri v. Chandrabati Chowdhrain, AIR 1917 PC 30 · Who else cites this
1 provisions across 1 enactments
M/s. Prahladrai Fabrics Limited
The Shamrao Vithal Co-op. Bank Limited
V. M. Kanade
Revati Mohite Dere
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
