9911796707
TMI Blog1980 (3) TMI 207X X X X Extracts X X X X X X X X Extracts X X X X ..... the Central Govt. without investigation under the circumstances mentioned in the notification and the Industrial Reconstruction Corporation of India Ltd. was appointed the authorised person under the said notification. It follows, therefore, that under the provisions of section 18FA, sub-sections (3), (4), (5) and (10), which are as follows: 18FA. (3) Where an order has been made by the High Court under sub-section (2) the High Court shall direct the Official Liquidator or any other person having, for the time being, charge of the management or control of the industrial undertaking, whether by or under the orders of any court, or any contract or instrument or otherwise, to make over the management of such undertaking or the concerned part, as the case may be, to the authorised person and thereupon the authorised person shall be deemed to be the Official Liquidator in respect of the industrial undertaking or the concerned part, as the case may be. (4) Before making over the possession of the industrial undertaking or the concerned part to the authorised person, the Official Liquidator shall make a complete inventory of all the assets and liabilities of the industrial undertakin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arising there under before the said date, shall remain suspended or shall be enforceable with such adaptations and in such manner as may be specified in the notified order. (2) The notified order made under sub-section (1) shall remain in force, in the first instance, for a period of one year, but the duration of such notified order may be extended from time to time by a further notified order by a period not exceeding one year at a time : Provided that no such notified order shall, in any case, remain in force ( a )after the expiry of the period for which the management of the industrial undertaking was taken over under section 18A, section 18AA or section 18FA, or ( b )for more than five years in the aggregate from the date of issue of the first notified order, whichever is earlier. (3) Any notified order made under sub-section (1) shall have effect notwithstanding anything to the contrary contained in any other law, agreement or instrument or any decree or order of a court, tribunal, officer or other authority or of any submission, settlement or standing order. (4) Any remedy for the enforcement of any right, privilege, obligation or liability referred to in clau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oyees subsisting immediately before the said date ; ( b )prepare separately a list of members and a list of creditors of such company as on the date of taking over of the management of the industrial undertaking showing separately in the list of creditors, the secured creditors and the unsecured creditors : Provided that where the management of the industrial undertaking of a company has been taken over under the said section 18A before the commencement of the Industries (Development and Regulation) Amendment Act, 1971, the aforesaid function shall be performed by the authorised person within six months from such commencement." Mr. Bimalesh Chatterjee, appearing for the petitioner, Indian Bank, submitted after drawing my attention to various provisions of the said Industries (Development and Regulation) Act, 1951, particularly sections 18E(1)( a ), ( b ) and (2), 18AA(3), (5), 18FA(2), (3), (4) and (10), 18FB(1)( b ) and 18FH and submitted that by the operation of the said provisions it is quite clear that the provisions of the Companies Act, 1956, are not suspended and he particularly referred to section 18E(2) and submitted that save and except the provisions mentioned th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1)( b ) of section 18FB that the operation of all or any contract, etc ., shall remain suspended or shall be enforceable with such adaptation and in such manner as may be specified in the notified order and all rights of the parties including the shareholder of the company (in liquidation) remain suspended and, in my view, the power to enforce the right of transfer of shares by rectification of the register of members is also a right of a shareholder of a company to transfer and correspondingly the transferee's right to get his name rectified in place of the transferor remains suspended. It makes no difference whether such right to become the shareholder is declared by a decree of the court as in the present case, because that would be rectification of the share register of the respondent-company in the course of winding-up pursuant to the decree of the court and such execution remains stayed within the meaning of section 18FA(10) during the period the management and control of the said company (in liquidation) is with the Central Govt. under the said Act. Further, it appears that under section 18FG the authorised person immediately after taking over the management of the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eing the respondent-company (in liquidation) is with the Central Govt. under the said Act and the notification is in operation. In short, the court has no jurisdiction as all proceedings in winding-up are stayed and, therefore, leave to proceed against the company (in liquidation) either under section 446 read with section 537 of the Companies Act, 1956, for the execution of a decree by court cannot and does not arise as all proceedings in winding-up have been stayed by the said special statute. Any other interpretation would frustrate and go against the object and purpose of the said Act which has specifically taken away the jurisdiction of the court so long the management and control of the industrial undertaking being the respondent-company (in liquidation) is with the Central Govt. Therefore, in my view, at this stage, the present petition is not maintainable as this court has no jurisdiction to grant any relief to the petitioner as his cause of action for making this application or the right to apply arises out of the contract between the shareholder and the company, who under the articles is entitled to transfer the same according to law and also by a decree which has declare ..... X X X X Extracts X X X X X X X X Extracts X X X X
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