9911796707
TMI Blog1997 (3) TMI 471X X X X Extracts X X X X X X X X Extracts X X X X ..... f this company. This company was ordered to be wound up only on August 22, 1990. An order was passed to withdraw the suit to this court and also this court permitted the applicant to continue the suit outside the winding up. Another order was also passed in Report No. 2 and in M.C.A. No. 12 of 1991 directing the I.C.I.C.I. and State Bank of Travancore, to pay to the official liquidator to meet the initial expenditure of winding up. These orders were taken up before the Supreme Court in S.L.P. (Civil) No. 10101 of 1991 and 11055 of 1992. These petitions were heard and decided by the Supreme Court as per judgment in Industrial Credit and Investment Corporation of India Ltd. v. Srinivas Agencies [1996] 86 Comp Cas 255; [1996] 4 SCC 165. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led by the I.C.I.C.I. seeking to set aside the order passed by this court on February 28, 1991, in M.C.A. No. 12 of 1991 and seeking leave under section 537 of the Companies Act for execution/enforcement of any decree to be passed in the said suit. This also is thus closely connected with the matter agitated in M.C.A. No. 12 of 1991. The facts frame in all these four applications raises the same issue, namely, whether the suits now pending before the Bombay High Court filed by the secured creditors of the company in liquidation need be withdrawn to this court and whether the plaintiffs be granted leave to continue the suit standing outside the winding up proceedings. Section 446 of the Companies Act deals with special powers enjoined on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ): "We are, therefore, of the view that the approach to be adopted in this regard by the company court does not deserve to be put in a strait-jacket formula. The discretion to be exercised in this regard has to depend on the facts and circumstances of each case. While exercising this power, we have no doubt that the company court would also bear in mind the rationale behind the enactment of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, to which reference has been made above.... It need not be stated that the terms to be imposed have to be reasonable, which would, of course, vary from case to case... The company court shall also apprise itself about the fact whether dues of workmen are outstanding, if so, the ext ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 2( h ) financial institutions are defined and it includes "institution" within the meaning of section 4A of the Companies Act, 1956. In terms of that provision both the I.C.I.C.I. and the I.D.B.I. shall be regarded as financial institutions. Therefore, the suits filed by the said two financial institutions for recovery of loans advanced by the said institutions come under the 1993 Act. As per section 31 of the said Act, all the pending cases shall stand transferred to such Tribunal. So, in terms of section 31, the suits filed by the I.C.I.C.I. and the I.D.B.I. and pending before the Bombay High Court are suits which stand transferred under the provisions of the 1993 Act to the Tribunal set up under that Act. Section 34 of the 199 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the I.D.B.I. in the Bombay High Court after the appointed day in terms of the 1993 Act, no leave is necessary for any party to the said suit to continue it, nor can this court withdraw the suit to be tried here. That has to be tried before the specialised machinery set up under the 1993 Act. In such circumstances, M.C.A. No. 12 of 1991 has to be dismissed because no leave is necessary to proceed with the suit filed by the applicant in that case. M.C.A. No. 58 of 1996 and M.C.A. No. 122 of 1996 are also dismissed as the suits filed by the I.D.B.I. and the I.C.I.C.I. cannot be withdrawn to this court. The order passed by this court in M.C.A. No. 12 of 1991 on February 28, 1991, is no longer in force in the light of the Supreme Court judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. The company had been ordered to be wound up by this court. This court has certainly the power to deal with the winding up applications and to pass appropriate orders to meet the ends of justice. The entire property of the company is in the custody of the official receiver of the Bombay High Court. No asset or record is in the possession of the official liquidator. At the same time, the official liquidator has to proceed with the winding up process and has to represent the company either in the Bombay High Court or in the Tribunal established under the 1993 Act. For this, expenses have to be incurred. The secured creditors have to meet this. In Report No. 2 in C.P. No. 17 of 1990, this court had already passed an order directing the I. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
