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TMI Blog2006 (9) TMI 286X X X X Extracts X X X X X X X X Extracts X X X X ..... up of the present applicant-company under sections 433 and 434 of the Companies Act, 1956, and pursuant to filing of the said petition, this court passed an order on August 25, 2005, whereby the present applicant-company was ordered to be wound up and the official liquidator attached to this court was appointed as the liquidator of the company with a direction to collect the detail with regard to the secured creditors and after obtaining details, in presence of secured creditors, if any, as well as the directors of the applicant-company, to take possession of the assets of the applicant-company by exercising his powers as a liquidator conferred on him under the provisions of the Companies Act, 1956. Pursuant to the said order, the official liquidator took possession of the registered office, all properties effect and actionable claims of the applicant-company on November 8, 2005. It is the case of the applicant-company that the applicant-company has already cleared the dues of secured creditors, i.e., Bank of India and in fact, a letter dated November 9, 2005, to this effect has already been issued by the said bank to the official liquidator. It is also the case of the applican ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and reviewing of the winding up order as well as for restoration of the winding up petition. This court has issued notice on July 14, 2006. On July 21, 2006, the court has passed an order recording the submissions made on behalf of the respective parties. Opponent No. 1 has confirmed the fact regarding settlement and joint prayer was made for recalling of the winding up order However, the deputy official liquidator has made his submission before the court that pursuant to the winding up order, he has filed his compliance report being O.L.R. No. 11 of 2006 and the same is pending before the court taking up company matters as per the roster. After obtaining the order from the hon'ble Chief Justice, both these matters were placed before this court. The court thereafter passed further order on August 11, 2006, directing the applicant to issue public advertisement in two newspapers, namely, Times of India, Ahmedabad edition, and Saurashtra Samachar, Bhavnagar edition, stating therein that the applicant has preferred M.C.A. No. 100 of 2006 praying for recalling of the winding up order passed by the court in Company Petition No. 66 of 2002, and if any one has objection against rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pany in liquidation has given the power of attorney to sell and/or transfer of the company's property situated at 204-205, second floor, Aristo Complex, Waghwadi Road, Bhavnagar to Shri Kamlesh Patel in spite of the fact that the said property was mortgaged with Bank of India, Bhavnagar. It is also stated that the said transaction was made on November 1, 2001, and the petition was filed on March 21, 2002, i.e., within six months prior to filing of company petition. He has further submitted that the said agreement was, therefore, deemed to be a fraudulent preference within the meaning of sections 531 and 531A of the Companies Act, 1956. The official liquidator has, therefore, taken the possession of the registered office of the company, by sealing and pasting the legal notice on the main gate of the registered office of the company. Even at the time of taking over possession of the factory premises of the company in liquidation, the representatives of the official liquidator were told that some portion of the land of factory approximately Rs. 3,595 sq. mtrs. which fell into survey No. 329 in plot No. 3 has also been sold by the company in liquidation on October 16, 2000, to Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bts of Shri Kamlesh Patel, the company in liquidation has offered to sell its office premises and part of the open land adjacent to its factory premises and an agreement to sell was executed in favour of the said Shri Kamlesh Patel by the company in liquidation way back on November 22, 2000. However, as there was no immediate buyer available for the said properties, it was mutually decided that Shri Kamlesh Patel be given an irrevocable power of attorney to sell off these properties to any buyer at a later stage. Pursuant to the same, power of attorney dated November 1, 2001, came to be executed by the company in liquidation in favour of the said Shri Kamlesh Patel. The company in liquidation created mortgage in favour of the said Shri Kamlesh Patel also on November 1, 2001. After execution of this power of attorney, the company in liquidation passed entry in its books of account and reduced the outstanding debt of the said Shri Kamlesh Patel by an amount of Rs. 30 lakhs as per the value of the properties mentioned in the power of attorney. In view of the same, in so far as the company in liquidation is concerned, it has sold off its properties to settle the outstanding dues of Shr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... editor which has filed the winding up petition before this court and since the matter is settled between the petitioning creditor as well as the present applicant-company and that settlement has been placed on record and since no one has raised any objection against recalling of the winding up order and even dues of the secured creditor, namely, Bank of India have already been satisfied, no useful purpose would be served keeping alive the winding up order. Accordingly, the said winding up order is required to be recalled. It is true that the present application is filed late. However, the applicant has prayed for condonation of delay and looking to the celebrated principles envisaged by section 5 of the Indian Limitation Act as well as various judgments of the courts taking liberal view while interpreting the provisions of section 5 of the Indian Limitation Act, the court exercises its discretion in favour of the applicant and condones the delay in filing the present application. The court is of the view that a very strong and meritorious case should not be thrown at the very threshold only on the technical ground of delay especially when the real interested party, i.e., opponent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter and on the basis of the documentary evidence produced on record and even after publication of the advertisements in two newspapers, no one has come forward to object the recalling of the winding up order, the court is satisfied that no valid ground or justifiable reason survives for allowing the company to be wound up. The dues of the petitioning creditor were satisfied. The dues of the secured creditor, i.e., Bank of India have also been satisfied. No one has come forward to raise any objection or to stake its claim before the company. No winding up petition is pending before the court against the company in liquidation nor any unsatisfied claim remains. A positive averment is made which has not been controverted, to the effect that there is no secured or unsecured creditor of the company. In light of these facts, the court thinks it just and proper to recall the winding up order. The court is of the view that despite letter dated November 9, 2005, written by Bank of India to the official liquidator, the official liquidator has joined Bank of India as party respondent in his official liquidator's report. It is nothing but complete non-application of mind by the official li ..... X X X X Extracts X X X X X X X X Extracts X X X X
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