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TMI Blog2005 (1) TMI 398X X X X Extracts X X X X X X X X Extracts X X X X ..... ion it faced problems and is lying closed since 1993 and has not been doing any business since then. It was directed to be wound up by order of the company judge dated November 1, 2001, pursuant to the recommendation of the Board for Industrial and Financial Reconstruction, made under section 20 of the Sick Industrial Companies (Special Provisions) Act, 1985. Pursuant to the winding up order the Official Liquidator took possession of the assets of the company. The liquidator, after taking possession, obtained the report from valuer approved by the court. The valuer submitted its report dated January 25, 2002. In the said valuation report the realisable value of the plant and machinery was shown to be Rs. 22,85,764.50. Auction sale notice was published in the news papers inviting offers for sale of the assets of the company-in-liquidation to be submitted on or before July 17, 2002. Sri Girdhari Lal Tiwari, ex-managing director of the company in liquidation appeared and objected to the auction sale on the ground that the valuation shown in the report dated January 25, 2002, was very low and in fact the value was much more. The court permitted him to file the objection before the Offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. We have been informed that after the order dated December 17, 2003, the auction purchaser has taken possession of the plant and machinery on January 1, 2004. Aggrieved by the order dated December 17, 2003, the present appeal was filed in which an interim order of status quo was passed on January 20, 2004, to be operative till January 28, 2004, which was subsequently extended from time to time. 7. We have heard Sri R.N. Singh, learned senior counsel assisted by Sri Shakti Swaroop Nigam for the appellants, Sri R.P Agarwal, learned counsel for the Official Liquidator, Sri S.G. Hasnain, learned senior counsel assisted by Smt. Kamla Mishra for the auction purchaser and Sri Anurag Khanna, learned counsel for PICUP. 8. A preliminary objection has been raised by Sri R.P. Agarwal, learned counsel appearing for the liquidator that this appeal is not maintainable on behalf of the company through its managing director. It is contended that company has already been ordered to be wound up vide order dated November 1, 2001, which has not been challenged by any party and has become final. In view of the provisions contained in section 445(3) of the Companies Act, 1956, all offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Companies Act, which only laid down a condition precedent to the filing of an appeal, if it has to be, by a liquidator of a company in the process of winding up. It concerns a very special case and has no bearing on the general right of appeal. As, in the instant case, the court refused the necessary sanction to the liquidators to prefer the appeal, no appeal could have been filed on behalf of the company. Hence, in so far as the appeal purported to be on behalf of the company, through the managing director aforesaid, it was wholly incompetent. . . ." (p. 1190) 11. In reply Sri R.N. Singh, learned senior counsel appearing for the appellant, has submitted that the appeal was maintainable as the director was also a contributory and as the appeal has been filed by Girdhari Lal Tiwari, managing director, therefore, the contention of the respondent cannot be accepted. 12. We have carefully examined the record and also the rival submissions made by the parties. From the provisions contained under sections 445(3) and 457 of the Act it can be easily deciphered that after the order of winding up has been passed, the director/officers of the company cannot file an appeal on beha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the managing director Sri Girdhari Lal Tewari or his counsel. The court after considering the valuation report, and there being no other valuation report indicating any higher value, the court accepted the highest offer of Rs. 20 lakhs and confirmed the same. The appellant was unable to show any material on re-cord that there can be any different valuation of the plant and machinery indicating higher amount as net realisable value. The report which has been relied upon by the appellant is of the year 2000, whereas the possession of the plant and machinery was handed over to the liquidator only after November 1, 2001, when the winding up order was passed. There is no report by the objector appellant subsequent to the two reports obtained by the liquidator in 2002 and 2003. No reliance could be placed on the valuation report of 2000, when the possession itself had been taken by the liquidator after that. There is no objection to the inventory prepared by the liquidator at the time of taking over possession. The only objection is that the valuation report did not give the correct value. In the absence of any material in support of the contention there was no occasion to disbelieve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ir value of the property, the general economic trends, the large sum required to be produced by the bidder, the formation of a syndicate, the futility of postponements and the possibility of litigation, and several other factors dependent on the facts of each case. Once that is done, the matter ends there. No speaking order is called for and no meticulous post mortem is proper. If the Court has fairly, even if silently, applied its mind to the relevant considerations before it while accepting the final bid, no probe in retrospect is permissible. Otherwise, a new threat to certainty of Court sales will be introduced." (p. 1335) 21. It may be worth noting that the secured creditor, viz. , PICUP represented by Sri Anurag Khanna, advocate has also given his consent for the prices accepted by the learned company judge through its counsel. This is also based upon the fact that the price received was more than the net realisable value indicated in the valuation report. Once the secured creditor after consideration has recorded its approval to the adequacy of the price received, there does not appear to be any justification to consider that the price offered was not adequate. 22. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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