1995 (12) TMI 308 - HC - Companies Law

Winding up Suits stayed on winding-up order, Receiver not to be appointed of assets with liquidator, Avoidance of certain attachments, executions, etc.

Summary

Issues:
1. Application for institution of a suit against the respondent-company in the High Court of Judicature at Bombay for realization of amounts due.
2. Appointment of a court receiver for the mortgaged and hypothecated properties of the respondent-company.
3. Recovery of dues by sale of movable and immovable properties of the respondent-company.

Analysis:
The Industrial Development Bank of India filed an application seeking leave under sections 446(1), 453, and 537 of the Companies Act, 1956, to initiate legal actions against the respondent-company. The bank had granted term loans secured by deeds of hypothecation and guarantees. The respondent-company was declared a sick industrial company recommended for winding up. The bank sought permission to file a suit in Bombay for recovery. The official liquidator opposed the application, arguing that all properties were under the court's custody post-winding up, and no receiver should be appointed.

The court analyzed Section 446(1) of the Act, emphasizing that suits post-winding up require court permission. The court noted the bank's secured creditor status and cited precedent requiring leave for suits, even if likely granted. The official liquidator did not object to the suit but suggested it be transferred to the winding-up court. The court allowed the suit to proceed in Bombay, subject to conditions like depositing funds for legal expenses with the official liquidator.

Regarding the appointment of a receiver and sale of properties, the court held that the official liquidator's role resembled that of a receiver. It deemed it inappropriate to grant leave for a receiver appointment or property sale, as the liquidator was responsible for managing company assets for equitable distribution among creditors. The court emphasized maintaining control over winding-up proceedings to ensure fair administration for all creditors.

In conclusion, the court partially allowed the application, granting leave to file a suit in Bombay with conditions. The bank was directed to deposit funds with the official liquidator and obtain further orders before executing any decree. The court highlighted the need to consider the interests of all creditors, including workmen, in the liquidation proceedings. The parties were instructed to bear their own costs for the application.