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TMI Blog2005 (1) TMI 421X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of the Companies Act, 1956 (for brevity, "the Act") read with rules 9, 272, 273 and 274 of the Companies (Court) Rules, 1959 (for brevity, "the Rules") for permission to sell the movable and immovable properties of the company in liquidation. On July 27, 2001, this court had ordered winding up of the company in liquidation while disposing of C.P. No. 71 of 2000. The aforementioned order was necessitated because the Board for Industrial and Financial Reconstruction (for brevity, "BIFR") has conveyed its opinion to this court on March 14, 2000, which is based on the order passed by a Bench of the BIFR in Reference No. 58 of 1987, dated March 1, 2000 (annexure R2 attached with the written statement of respondent No. 10). The official liquidator attached to this court was appointed its liquidator. In pursuance to the directions issued by the court, the official liquidator took possession of the property although there was some resistance by the ex-employees and their families on the ground that their dues were not cleared. It has further been pointed out that Punjab Alkalies and Chemicals Ltd. respondent No. 10 and the company in liquidation have common water system installed in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consideration before this court which has been admitted to be heard by a Division Bench and the same is pending. It is claimed that since both the companies have been promoted by the Punjab State Industrial Development Corporation Limited and the plants of both the companies are located at Naya Nangai, District Ropar (Punjab), adjacent to each other which have common facilities, permission for sale of the assets be not granted. At one stage, respondent No. 10 had made an offer to pay the company in liquidation a price of Rs. 60 lakhs in lieu of its interest in the common facilities which was allegedly determined by the IDBI Bank. The common facilities are as under : ( a )exchange of land between PACL and PNFC for straightening of common boundary wall, laying of railway tracks and construction of PACL approach road. ( b )water reservoir and pumping system. ( c )common power sub-station for supply of power. ( d )common railway siding. ( e )storm water drain. ( f )common PACL-PNFC housing colony. In the objections filed by respondent No. 10 some developments which have been taken place either before this court or before the authorities under the SICA have been given in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed counsel for the official liquidator have submitted that a period of over three years has passed since the passing of the winding up order by this court on July 27, 2001. According to learned counsel, it would be entirely in the interest of the company, secured creditors Nos. 1 to 8 and its workers to permit the sale of its movable and immovable assets so that growing liabilities of the company are capped. Learned counsel have argued that interest on the secured loan is accruing and the movable property like furniture and machinery, etc., would be reduced to junk which would be adverse to the interest of the secured creditors respondents Nos. 1 to 8. Learned counsel have then argued that no other secured creditor from respondents Nos. 1 to 8 have raised any objection to the sale of movable assets of the company. On behalf of the official liquidator they have offered that the part forming common facilities as detailed in the written statement filed by respondent No. 10 can be kept in a separate lot so that its sale proceeds are identifiable. Mr. R.M. Suri, Mr. B.B. Bagga and Mr. Nitin Kumar, learned counsel have made submissions with regard to the distribution of sale proceeds ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gument that the provisions of sections 20 and 32 of the SICA would prevail over the Act and, therefore, the earlier Act would prevail over the later Act as there are non obstinate clauses implied in sections 20 and 32 of the SICA. In support of his submission, learned counsel has placed reliance on paragraph 9 of a judgment of the Supreme Court in the case of Maharashtra Tubes Ltd. v. State Industrial and Investment Corporation of Maharashtra Ltd. [1993] 78 Comp. Cas. 803 ; [1993] 2 SCC 144. He has also cited the judgment of the Supreme Court in the case of Solidaire India Ltd. v. Fairgrozvth Financial Services Ltd. [2001] 104 Comp. Cas. 569; AIR 2001 SC 958. Learned counsel has been referred to the proposal dated August 8, 2000 (annexure R5) with his reply and argued that common facilities existing between the company in liquidation and respondent No. 10 had been jointly established by them by incurring expenditure on 50:50 basis. The facilities have not been enjoyed by both the companies for the last over 18 years. He has also referred to the order of the AAIFR wherein the interest of the company in liquidation was offered to be purchased by respondent No. 10 for a sum of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , area and assets be kept in a separate lot and sealed tenders be invited in respect thereof separately. Keeping in view the anxiety of respondent No. 10 which has offered Rs. 60 lakhs to purchase the interest of the company in liquidation with the common facilities, respondent No. 10 shall be at liberty to participate in the sale of the assets of the company in liquidation by sending its own tender. If the tender of respondent No. 10 is found to be the highest or it raises its bid by hiking the offer, then it could succeed in purchasing the interest of the company in liquidation with common facilities. The argument that Civil Writ Petition No. 15364 of 2002 is pending before a Division Bench of this court and for other reasons no permission with respect to the common facilities be granted has not impressed me because the order of the AAIFR is against respondent No. 10 wherein it is observed that it has no jurisdiction to pass any order under section 20(4) of the SICA after this court has passed a winding up order on July 27, 2001. The earlier order passed by the AAIFR on September 7, 2001, whereby the interest of the company in liquidation in the common facilities was proposed t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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