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TMI Blog2008 (2) TMI 623X X X X Extracts X X X X X X X X Extracts X X X X ..... at respondent No. 2 has misled the court at the time of obtaining bail and true and correct facts were not presented before the court. Since this court is not seized with the said criminal matter the court is not passing any order adverse to respondents Nos. 2 and 3. However, it is open for the applicant-bank to take note of this order and take out appropriate proceeding, if it thinks proper. Likewise, respondent No. 3 was the director of the company and he has signed the power of attorney in 2001, i.e., after the date of winding up order. He is well educated and qualified person. He is supposed to know that the company went into liquidation and it is not proper for him to execute power of attorney whereby the powers are given to the bank to sell the property of the company in liquidation. The bank's version that it came to know only when an advertisement has appeared in the newspaper is also not satisfactory. - COMPANY APPLICATION NO. 583 OF 2007 AND COMPANY PETITION NO. 222 OF 1999 - - - Dated:- 20-2-2008 - K.A. PUJ, J. Nandish Chudgar for the Applicant. Mrugesh Jani, Chetan K. Pandya and Sudhir M. Mehta for the Respondent . JUDGMENT (ORAL JUDGMENT) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r affidavits are filed by the applicant-bank. Mr. Nandish Chudgar, learned advocate is appearing for Nanavati Associates for the applicant. It is the case of the applicant-bank that the applicant-bank had granted certain financial facilities to M/s. Navrang Synthfab Pvt. Ltd., company in liquidation, M/s. Ashit Fashion Pvt. Ltd., and S. G. Fashion Makers Pvt. Ltd., a group of companies administered and managed by the same group of persons. The applicant-bank had granted the credit facilities to the company in liquidation to the tune of Rs. 1,81,32,115. To secure the repayment of the outstanding amount, the director of the company in liquidation had executed an irrevocable power of attorney in favour of the applicant for the subject property being Plot No. 267/P land admeasuring about 20,639 sq.mtrs., situated at Mouje, village Iyava (Vasna), taluka Sanand, dist. Ahmedabad. It is also stated that the applicant-bank has to recover an amount of Rs. 83,86,836 as on March 30, 2007. Mr. Chudgar has further submitted that since the authorised persons of the company as well as the group of companies had committed gross irregularities and offences, the applicant-bank was constrained to fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive power of attorneys, it appeared that there was some confusion with regard to real title and ownership of the subject property and hence only with a view to clarify the said aspect of the matter, the applicant-bank has joined respondents Nos. 2 and 3 as party respondents. Mr. Chudgar has further submitted that the applicant-bank has only come to know from the advertisement published on October 12, 2007, with regard to the same property for public auction and hence the applicant-bank wrote a letter to the official liquidator on October 16, 2007, wherein it had registered objection against holding of auction of the subject property. The applicant-bank, thereafter, wrote further letters dated October 23, 2007 and October 25, 2007, reiterating its contention that by virtue of the powers of attorney dated September 4, 2001 and April 16, 2004, executed by the director of the company in liquidation and Mr. Agarwal, who projected himself as the owner of the property, the applicant-bank has got exclusive charge over the property in question. Such charge also reflected in 7/12 abstract of the said property. Hence, it can reasonably be said that the applicant-bank is the secured creditor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that respondent No. 2 has never claimed ownership of the property in question. Since, the director of M/s. Navrang Synthfab Pvt. Ltd., has executed irrevocable power of attorney in favour of the bank and has tendered original sale deed by creating mortgage, respondent No. 2 has executed irrevocable power of attorney in favour of the applicant-bank and in the said power of attorney it was also made clear that the land belongs to company in liquidation. He has, therefore, submitted that there was no concealment or mis-representation of the fact before this court in Criminal Misc. Application No. 886 of 2004. He has, therefore, submitted that respondent No. 2 has been wrongly joined as party in the present proceeding and no action can be taken against him nor any observation can be made against him which will prejudice his case before the criminal court. Mr. Sudhir Mehta, learned advocate appearing for respondent No. 3 has also mainly relied on the affidavit filed by respondent No. 3. He has submitted that he joined Ashok Fashions Ltd., in June 1992 as electronic data processing manager and was promoted as general manager in 1994 and he was working for the said company till 1998. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bank for the purpose of creating equitable mortgage in favour of the applicant-bank, during the pendency of winding up petition and hence the said transaction squarely falls within the ambit of section 536(2) of the Act as it was entered within one year prior to the date of winding up. He has, therefore, submitted that the relief prayed for in the present application cannot be granted. Having regard to the facts and circumstances of the case and considering the averments made in the application as well as the affidavit-in- reply filed by respondents Nos. 2 and 3, this court is of the view that the relief prayed for in the present application no longer survives in view of the order passed by this court on February 19, 2008, in Company Application No. 71 of 2008. In that order the court has clearly indicated that the applicant-bank would be permitted to participate in the sale committee meeting as well as all proceedings for property in question of the company in liquidation. The applicant-bank's status would be decided only on the outcome of the application that may be filed before the Company Law Board. This question will be decided at the time of disbursement of the amount real ..... X X X X Extracts X X X X X X X X Extracts X X X X
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