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TMI Blog2005 (9) TMI 302X X X X Extracts X X X X X X X X Extracts X X X X ..... 001 recording its prima facie opinion that the respondent-company was not likely to make its net worth exceed its accumulated losses within a reason able time while meeting all its financial obligations and that the company as a result thereof was not likely to become viable in future; for which reason it was just and equitable and in public interest to wind up the said company under section 20(1) of the Sick Industrial Companies (Special Provisions) Act. 3. The said recommendation was registered as B.I.F.R. case No. 50/1998 against the respondent-company and was formally admitted by this Court s order dated 13-2-2002. On the same day, another company petition came to be admitted by this Court being company petition No. 1068/1997 filed by M/s. Ralli Brothers Convey for passing order of winding up of respondent-company and to appoint Official Liquidator with all powers under the provisions of the Companies Act, 1956. 4. Insofar as company petition No. 1068/1997 is concerned, it arises on account of non-payment of dues receivable by the said petitioner in respect of admitted and acknowledged liability by the respondent-company. An award was passed against the respond ent- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 489/2002 for the following reliefs : ( a )The High Power Committee appointed by the Government of Maharashtra as per the letter dated 28-9-2001 and annexed as annexure "A" to the affidavit in support of this Judge s summons be appointed as Committee authorised and directed to sell the assets of the company and to deposit the sale proceeds thereof with this Hon ble Court. ( b )The High Power Committee be directed to call a meeting of the creditors and the workers of the company to formulate a scheme for distribution of the amounts recovered after sale of the assets as per the provisions of the Companies Act, 1956 and to submit the same to this Hon ble Court for further directions. The said application was disposed of by order dated 21-6 2002, which reads thus : "1. Leave under rule 19(3) of the Company Code Rules, 1959 granted to the applicant/petitioner to take out a Judges Summons in terms of the Draft Judges Summons handed in. Judges Summons made forth- with. 2. By consent, heard forthwith. 3. After hearing the parties and considering the documents on record and the various orders, the ends of justice would be met if the High Power Committee, appointed by the Governm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the company is unable to pay its debts. 8. Accordingly, I proceed to order that the respondent-company be wound up under the orders and supervision of this Court. The provisional Liquidator appointed by this Court, by virtue of section 450(4) of the Act, would act as Official Liquidator with full powers. This order also disposes of companion company peti tions already on board with liberty to the respective petitioners to submit their claims to the Official Liquidator, which will be considered in accordance with law. 9. There is one more question which will have to be resolved in the present petitions. The counsel for the workmen as well as for the company contend that as the High Power Committee has been appointed by the State Government to deal with the assets of the company, the said committee be permitted to "independently" continue with steps to be taken for disposal of immovable assets of the company which are the only properties available for dis posal in relation to the respondent-company. It was argued that it was not necessary for the said High Power Committee to revert back or report to the Official Liquidator or the Court or for that matter to seek confirm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f accepting or refusing the highest bid at the auction held in pursuance of its orders, should see that the price fetched at the auction is an adequate price "even though there is no suggestion of irregularity or fraud. In LICA (P.) Ltd. (No. 2) v. Official Liquidator [1996] 85 Comp. Cas. 792 (SC), it has been held that proper control of the proceedings and meaningful intervention by the Court would pre vent the formation of a syndicate, underbidding and the resultant sale of property for an inadequate price. The abovesaid decisions are referred to and relied on in the case of Divya Mfg. Co. (P.) Ltd. v. Union Bank of India [2000] 6 SCC 69. Thus understood, it is not possible to accede to the submission made on behalf of the workmen and the company that the High Power Committee be permit ted to "independently" proceed with the sale of leftover immova ble assets of the company that too without approaching the Court for confirmation of sale thereof. 11. To get over this position, counsel for the workmen and compa ny relied on the order passed on 21-6-2002, which is reproduced in its entirety in the foregoing paragraph and the subsequent orders passed on 5-6-2003 and 11-9- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amended by the Amending Act of 2002 has come into force. That is not so. For, the Central Government is yet to issue notification in terms of section 1(2) of the Act of 2002 so as to bring the amended provi sions in force. Whereas, under the extant provision section 448, the Official Liquidator appointed by the Central Government attached to the Bombay High Court, who is a whole-time officer, will have to be appointed as a consequence of the order of wind ing up. 12. Mr. Kumbhakoni, Associate Advocate General appearing for the High Power Committee has, therefore, noted the abovesaid line of argument canvassed by the workmen and the company. He, howev er, submits that the movable properties of the company have been disposed of by the said committee and the procedure followed by the committee was placed before this Court in derivative proceed ings. This Court was satisfied about the procedure adopted by the High Power Committee and only thereafter, the sale of movable assets (plant and machinery) of the respondent- company, in favour of M/s. Bhavna Enterprises, was allowed to be completed. Mr. Kumbhakoni submits that even with regard to the immovable assets of the respondent-com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in two local newspapers having wide circulation, one in English and another in vernacular language in Mumbai, Delhi, Chennai, Kolkata, Hyderabad, Ahmedabad and Bangalore respectively. The advertisement shall be issued in the name of the Official Liquidator, High Court, Mumbai. ( iii )All communications to be sent by the High Power Committee in respect of sale of immovable properties of the respondent-company shall clearly state that the same is sent as "agent" of the Official Liquidator, High Court, Mumbai. Copy of every communication sent by the High Power Committee be marked to the Official Liquidator for his information. ( iv )The advertisement regarding sale shall be issued within three weeks from the date of submission of report by the High Power Committee. The advertisement shall provide last date of inviting tenders at least two weeks from the date of last adver tisement published. After expiry of last date of receiving ten ders, on the following working day, the tenders shall be opened in the presence of Official Liquidator at the specified time and place. The offerors may be permitted to raise their bid at the said auction, if they so desire. The Official Liquidator wo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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