9911796707
TMI Blog2000 (6) TMI 736X X X X Extracts X X X X X X X X Extracts X X X X ..... cumbering, transferring, alienating and disposing of any of the assets of the appellant-company. Notice was issued by the learned Judge on the appellant making it returnable on 18-5-2000. 2. It is stated that after the impugned order was made, the Official Liquidator has started functioning as the Provisional Liquidator. 3. The learned counsel appearing for the appellant submitted that the impugned order made by the learned Single Judge contravenes the provisions of the Companies Act, 1956, inasmuch as no such provisional liquidator could have been appointed before issuing a notice on the appellant as contemplated by section 450 of the said Act. It is also argued that no special reasons have been recorded by the learned Single Judge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court. This is why it was argued by the learned counsel that since no special reasons were recorded in the impugned order, the appointment of the Provisional Liquidator was invalid. The copy of the impugned order, which is annexed in this appeal memo, is incomplete so far as paragraph 3 thereof is concerned. From the certified copy of the impugned order which is placed on record by the caveator, we find that it reads as under : "In view of the submissions made particularly in paras 19 to 26, I have proceeded to take up the present petition for consideration. It has been stated by the learned advocate for the petitioner that the respondent-company has failed and neglected to carry out the orders issued by the Company Law Board and the resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cumstances of the case as pointed out in paragraph 12 of the petition. The bank directed the company under section 45MB(2) of the RBI Act not to sell, transfer, create charge or mortgage or deal in any manner except for repayment of public deposits, with the properties and assets of the company without the written permission of the bank for a period of six months from the date of that order. It is stated in paragraph 13 of the petition that the bank had received a number of complaints from the depositors and unsecured OFDC holders complaining about the non-payment of their dues by the company. Some of the complaints were annexed at Annexure IV to the petition. It is pointed out in paragraph 14 of the petition that the CLB had issued certain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere due to them towards balance sale consideration under the agreement dated 7-9-1999. It was alleged in the complaint that the functioning of the company was severely hampered and that the recovery of the dues to the company were jeopardized. The RBI obtained from the office of the Addl. Director General of Police, Economic Offences Cell, Ahmedabad, a copy of the said complaint as mentioned in paragraph 16 of it. Civil Suit No. 1659 of 1999 has been filed by Electric Control Gear (India) Ltd. in the City Civil Court, Ahmedabad, against the appellant-company, Radhey Developers (India) Ltd. Shri Ashish Patel and another for specific performance of the agreement dated 7-2-1999 which is still pending, as stated in paragraph 17 of it. One Unnat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proper person be appointed as liquidator of the company and that an injunction be issued prohibiting it and its directors from disposing of their assets. In paragraph 26 of the petition it is stated that for the reasons given in the preceding part of the petition it was proper that a Provisional Liquidator be appointed. 6. In the prayer clause of the winding up petition the bank had prayed for winding up of the company, appointment of the Official Liquidator as the liquidator of the company for such winding up and appointment of the Official Liquidator as a Provisional Liquidator of the company to take charge of the company s properties and assets etc. Ad interim relief was also sought. The learned Single Judge was satisfied that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor is wholly misconceived. The averments which are made in the winding up petition, which has been filed under section 45MC, which provisions requires the bank to be satisfied about the existence of the grounds mentioned therein, and the facts as regards the dealing by the company, of its assets as also the disputes inter se, warranted appointment of a provisional liquidator in this matter. 8. The contention that the impugned order is bad because it is made on the main petition under section 450 of the Companies Act is wholly misconceived. A provisional liquidator can be appointed by the Court at any time after the presentation of a winding up petition and before the making of a winding up order and this power is not made dependent o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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