2008 (11) TMI 575 - HC - Companies Law

Winding up - Powers of liquidator - Held that - Soon after the conclusion of the inspection, M/s. Cosmos would be entitled to deal with all the properties found on the factory premises of the company in liquidation, irrespective of the fact that there may be some items at the factory premises of the company in liquidation over which M/s. Gupta Refractories may lay their claim. The claim of M/s. Gupta Refractories for such items, if found admissible, would be met from out of the sale proceeds deposited by M/s. Cosmos, or adjusted from the value of any immovable property, i.e., machinery/parts of machinery (which is classified as immovable property), and which may have been already removed by it. This arrangement would enable M/s. Cosmos to deal with the asset for which it has paid a substantial amount of ₹ 6.15 crores some time after April, 2007 and they would not have to further await the adjudication of the claims/liabilities, if any, of M/s. Gupta Refractories. Further direct the official liquidator to execute the conveyance deed in favour of M/s. Cosmos or its nominee in respect of the immovable property of the company purchased by M/s. Cosmos. However, no compensation can be claimed by M/s. Cosmos on account of delay in the completion of process of execution of the conveyance deed, since it cannot be said that the official liquidator has acted negligently in the matter. M/s. Cosmos participated in the court auction with open eyes, knowing fully well about the pendency of the claim of M/s. Gupta Refractories, as contained in C. A. No. 385 of 2007, as also the claim of M/s. MPFC in C. A. No. 165 of 2007. I am not inclined to allow M/s. Cosmos to withdraw any part of the sale consideration deposited by them. Instead they are permitted to exercise their rights unhindered, in any manner, in respect of the assets purchased by it in the aforesaid terms. Accordingly, C. A. Nos. 706 of 2007, 922 of 2007 and 1031 of 2008 filed by M/s. Cosmos are disposed of in the aforesaid terms. C. A. No. 165 of 2007 of MPFC is partially rejected in so far as it challenges the auction sale in favour of M/s. Gupta Refractories on the ground of it being hit by the provisions of the Companies Act. Other reliefs prayed for by MPFC would be considered by the court after the receipt of the report of the local commissioner and technical expert and after hearing the parties with regard to the claim of MPFC that it has the first charge over the fixed assets of the company in liquidation. C. A. No. 385 of 2007 filed by M/s. Gupta Refractories is dismissed, subject to the right of M/s. Gupta Refractories to stake their claim, if any, for the value of any movable asset, after the receipt of the report of the local commissioner and technical expert.

Issues Involved:
1. Validity of the auction sale conducted by the Tehsildar on July 26, 2001.
2. Exclusion of certain movable goods from auction proceedings.
3. Execution of conveyance documents and compensation for delay.
4. Withdrawal of deposited amount by the auction purchaser due to delays.

Issue-wise Detailed Analysis:

1. Validity of the Auction Sale Conducted by the Tehsildar on July 26, 2001:
The Madhya Pradesh Financial Corporation (MPFC) challenged the auction sale conducted by the Tehsildar on July 26, 2001, on the grounds that it was in contravention of sections 441, 531, and 537 of the Companies Act, 1956. MPFC argued that the winding-up proceedings of the company had commenced when the Board for Industrial and Financial Reconstruction (BIFR) forwarded its final opinion to this court under section 20 of the SICA, registered as C.P. No. 25 of 1998. However, the court found no effective orders were passed in those proceedings until the winding-up petition C.P. No. 428 of 2002 was taken up, leading to the provisional winding-up order on September 13, 2004, and the final winding-up order on April 4, 2005. The court noted that neither the Collector and Tehsildar, Morena, nor M/s. Gupta Refractories were aware of the pendency of the winding-up proceedings. The auction sale was conducted without the knowledge of these proceedings, and the MPFC did not challenge the auction sale until February 14, 2002. The court concluded that reopening the auction sale at this stage would not be useful, especially since M/s. Gupta Refractories had already removed a large quantity of goods after depositing the auction price of Rs. 52 lakhs. Therefore, the auction sale conducted by the Tehsildar, Morena, was not set aside.

2. Exclusion of Certain Movable Goods from Auction Proceedings:
M/s. Gupta Refractories filed C.A. No. 385 of 2007, seeking to exclude structures, machines, and other movable goods lying at the factory premises from the auction proceedings. The court noted that the auction conducted by the Tehsildar, Morena, on July 26, 2001, was only for the "movable property" (Chal Sampatti) and not for the immovable property. The proceedings sheet prepared by the Tehsildar clearly recorded that only movable properties were being sold. M/s. Gupta Refractories had earlier stated in proceedings before the Madhya Pradesh High Court that it had purchased only the movable property. The court found that the claim of M/s. Gupta Refractories to include structures and machines within the scope of its purchase was contradictory to its earlier statements. The court also referred to the principles enunciated by the Supreme Court in Duncans Industries Ltd. and T.T.G. Industries Ltd. to determine whether the plant and machinery were movable or immovable property. The court concluded that the heavy machinery, plant, and equipment were immovable properties, and M/s. Gupta Refractories' claim was rejected.

3. Execution of Conveyance Documents and Compensation for Delay:
C.A. No. 706 of 2007 filed by Cosmos sought the execution of conveyance documents and compensation for delay. The court directed the official liquidator to execute the conveyance deed in favor of M/s. Cosmos or its nominee in respect of the immovable property purchased by M/s. Cosmos. However, the court did not grant compensation for the delay, noting that the official liquidator had not acted negligently and that M/s. Cosmos participated in the court auction with knowledge of the pending claims.

4. Withdrawal of Deposited Amount by the Auction Purchaser Due to Delays:
C.A. Nos. 992 of 2007 and 1031 of 2008 filed by Cosmos sought the withdrawal of a substantial part of the amount deposited due to delays. The court did not allow the withdrawal but permitted M/s. Cosmos to exercise their rights over the purchased assets unhindered. The court directed that M/s. Cosmos would be entitled to deal with all properties found on the factory premises after the conclusion of the inspection by the local commissioner.

Further Directions:
The court appointed a local commissioner to inspect the factory premises and report whether M/s. Gupta Refractories had removed any machinery or parts thereof that were attached to the earth and constituted immovable property. The local commissioner was also tasked with identifying any remaining movable properties and their state. The court directed that the expenses for the local commissioner's inspection would be borne by the official liquidator from the funds received from M/s. Cosmos.

Conclusion:
C.A. No. 165 of 2007 filed by MPFC was partially rejected regarding the auction sale's validity. Other reliefs prayed by MPFC would be considered after the local commissioner's report. C.A. No. 385 of 2007 filed by M/s. Gupta Refractories was dismissed, subject to their right to claim the value of any movable asset after the local commissioner's report. C.A. Nos. 706 of 2007, 992 of 2007, and 1031 of 2008 filed by M/s. Cosmos were disposed of as per the court's directions.

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