1987 (11) TMI 308 - HC - Companies Law

Summary

Issues Involved:
1. Petitioners' request to be kept outside the liquidation proceedings.
2. Petitioners' request to continue civil and criminal proceedings against the company's directors.
3. Validity of hypothecation of assets by the partnership firm before its conversion into a company.
4. The impact of the company's voluntary winding-up on the secured creditors.
5. The assistant official liquidator's objections and claims regarding the assets and proceedings.

Detailed Analysis:

1. Petitioners' Request to be Kept Outside the Liquidation Proceedings:
The petitioners, Maharashtra State Financial Corporation, sought to be excluded from the liquidation proceedings of M/s. Sidhu Tyres Pvt. Ltd. They argued that the assets hypothecated by the partnership firm before its conversion into a company do not belong to the company under liquidation. The court noted that the petitioners had acceded to the conversion of the partnership firm into a company, thus binding the assets to the company. The court rejected the argument that the assets hypothecated before the company's incorporation were not part of the company's assets.

2. Petitioners' Request to Continue Civil and Criminal Proceedings Against the Company's Directors:
The petitioners also sought permission to continue civil and criminal proceedings against the directors of the company. The court acknowledged that the criminal and civil proceedings were stayed by an ex parte order in Company Petition No. 4S of 1986, and the petitioners were not notified of these proceedings. The court allowed the petitioners to file an application to vacate the stay of criminal proceedings, emphasizing that the criminal case is against the directors personally and not the company.

3. Validity of Hypothecation of Assets by the Partnership Firm Before Its Conversion Into a Company:
The petitioners contended that the hypothecation of assets by the partnership firm before its conversion into a company was still valid. The court held that the hypothecation made by the partnership firm in favor of the petitioners was binding on the company after its incorporation. The court dismissed the argument that the partnership firm still subsisted and that there was no transfer of assets to the company.

4. The Impact of the Company's Voluntary Winding-Up on the Secured Creditors:
The court noted that the petitioners, as secured creditors, had a right to take over the management or possession of the hypothecated assets under section 29 of the State Financial Corporations Act, 1951. The court referred to the Kerala Financial Corporation v. C. K. Sivasankara Panicker case, which ruled that section 46B of the State Financial Corporations Act has an overriding effect over section 125 of the Companies Act. Therefore, the petitioners' rights as secured creditors were upheld, and they were allowed to realize the hypothecated assets.

5. The Assistant Official Liquidator's Objections and Claims Regarding the Assets and Proceedings:
The assistant official liquidator opposed the petition, arguing that the charge in favor of the petitioners was not registered with the Registrar of Companies and, therefore, not binding. The court rejected this argument, stating that the obligation to register the charge was on the directors of the company after its incorporation. The court directed the assistant official liquidator to remove the seal on the sheds, take an inventory, and hand over the hypothecated machinery and equipment to the petitioners.

Conclusion:
The court allowed the Maharashtra State Financial Corporation to be kept outside the liquidation proceedings. The petitioners were directed to withdraw Special Civil Suit No. 46 of 1985 and file an application to vacate the stay of Criminal Case No. 184 of 1985. The assistant official liquidator was instructed to segregate and hand over the hypothecated machinery and equipment to the petitioners. The petition succeeded, and the rule was made absolute with no order as to costs.