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TMI Blog2010 (3) TMI 668X X X X Extracts X X X X X X X X Extracts X X X X ..... at he had taken possession and will make over all assets of the company (in liquidation) matching such list of inventories to the Official Liquidator as expeditiously as possible, and preferably within a period of four days from the date of receipt of an authenticated copy of this order. - C.A. NO. 383 OF 2007 - - - Dated:- 8-3-2010 - SANJIB BANERJEE, J. Debangshu Basak and Deepanath Roychowdhury f or the Appellant. Nimish Mishra for the Bank of India . S.S. Basu, Rabindranath Saha and Susanta Dutta for the Official Liquidator. ORDER C.A. No. 383 of 2007 is the first application in point of time made by some workers along with an alleged well-wisher of the company (in liquidation) invoking sections 391, 394 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... continued after the expiry of the six months following the order of 2-7-2008. The applicants have continued to run and manage the business of the company and have used all its assets without any sanction of law or leave of Court or any moral or equitable authority. This, by itself, would call for the applicants in C.A. No. 383 of 2007 to be debarred from having anything to do with the assets of the company (in liquidation). 4. C.P. No. 253 of 2009 has been made ostensibly in connection with C.A. No. 383 of 2007. There is a mistake not only in procedure but in substance in the opening lines of C.P. No. 253 of 2009. If C.A. No. 383 of 2007 was filed in connection with C.P. No. 577 of 2004, C.P. No. 253 of 2007 could not have been filed as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings ordinarily seeks leave to convene meetings, whether of shareholders or creditors or other classes of persons connected with the company. It is the result of the meeting or meetings which decides as to whether the scheme that is propounded and placed for approval at the meetings needs to be carried to Court. If the proposed scheme is defeated at any of the meetings, there may not arise the question of carrying the scheme to Court as the statutory pre-condition for the Court to consider the scheme would not have been met. 7. It is in these circumstances that it is surprising how C.P. No. 253 of 2009 was brought by relying on C.A. No. 383 of 2007 since C.A. No. 383 of 2007 was not a stand alone application under section 391 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at they obtained on 2-7-2008, have not even chosen to seek the permission of the secured creditor or of the contributories of the company. The petitioners have chosen only to seek the sanction of a scheme on the basis the purported approval thereof by unsecured creditors of the company (in liquidation). It is only at the hearing that the petitioners admit that the consent of both the secured creditors and the contributories would be necessary and seek directions in such regard. Such change of tack is obviously to delay the matter and continue the petitioners illegal control over the assets of the company (in liquidation) through the now defunct committee of management. 11. The petitioners are, in a sense, complete strangers to the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cess of Rs. 19 lakh and insists that without such payment being made upfront the bank would not consider the purported scheme propounded by these petitioners. The bank also insists that an undertaking must be furnished by the company, whoever it may be run by, that the bank would be paid 36 equated monthly instalments of about Rs. 1.31 lakh beginning March, 2010. The interest of the secured creditors of a company (in liquidation) come ahead of the interest of the unsecured creditors. For any scheme for revival of a company (in liquidation), the approval of the secured creditors is the first step that needs to be taken before the unsecured creditors can be looked at. If the assets of a company (in liquidation) are sold, section 529A and sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . No. 253 of 2009 have no ground to stand on. In any event, since the strategic partner referred to in C.A. No. 383 of 2007 and in the order of 2-7-2008 has now pulled out, the basis of the ill-conceived exercise has vanished into thin air. It is submitted on behalf of the Rabindranath Saha, the sixth applicant in C.A. No. 383 of 2007, that he is no longer desirous of financing the scheme that had been propounded. If the financier had backed out then the petitioners in C.P. No. 253 of 2009, whatever else their other legal rights may be, do not have any scheme to carry forward. Not unexpectedly, the well-wisher of company that the workmen brandished in C.A. No. 383 of 2007 now has only harsh and unkind words for the second petitioner in C.P. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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