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TMI Blog2010 (4) TMI 610X X X X Extracts X X X X X X X X Extracts X X X X ..... s making some specific order regarding payment to the landlord and we re-affirm that order as regards the payment to the landlord. Thus no merit in this appeal and the same is dismissed. - A.C.O. NO. 25 OF 2010 A.P.O.T. NO. 112 OF 2010 C.A. NOS. 651 AND 699 OF 2009 C.P. NO. 128 OF 2007 - - - Dated:- 16-4-2010 - BHASKAR BHATTACHARYA AND PRASENJIT MANDAL, JJ. Hirak Mitra, Soumen Sen, Siddhartha Chatterjee, Nilendu Bhattacharya, Ms. S. Ghosh, S.B. Mukherjee, Bimal Chatterjee, Tilak Bose, D.N. Sharma, A. Chowdhury, Mrs. Manju Bhuteria, Ravi Asopa, K.C. Garg, B. Dutt and Bijan Datta for the Appearing Parties. JUDGMENT Bhaskar Bhattacharya, J. - This appeal is at the instance of a third party in a proceeding of winding up of a company-in-liquidation and is directed against the order dated 8-1-2010, by which the learned company court has dismissed two applications, one under section 466 and the other under section 457 of the Companies Act, 1956. 2. Being dissatisfied, a third party to the proceeding who was, in the past, allowed to run the company by virtue of an interim order, has come up with the present appeal. 3. The facts giving rise to filing of this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... official liquidator in taking possession by contending that they had been sitting on "dharna" and in order to protect themselves, the employees did not allow the Official Liquidator to take possession of the assets of the company- in-liquidation. It was further contended that if the company went into liquidation and its assets were sold, no purpose would be served other than that of the burial of a dead person whereas if the employees were allowed to run the company under the supervision, guidance and management of one R.P. Techvision (India) (P.) Ltd., the present appellant, the company might continue as a going concern and the creditors might be paid off by way of a scheme and nobody would suffer any loss and prejudice. ( d )The said application was taken up for hearing on 1-9-2009, after the official liquidator had been allowed access, when the learned advocate appearing on behalf of the company-in-liquidation submitted that his clients were willing to sit with all the creditors for the purpose of formulating a scheme under which their dues could be cleared, and thereafter, he would submit a proper scheme for the revival of the company. ( e )On the basis of the aforesaid sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further proceedings in connection with the winding up application had been stayed. ( h )The interim order staying further proceedings in winding up, as mentioned above, was extended from time to time and ultimately, on 26-10-2009, another application was filed by one of the two original applicants which was registered as C.A. No. 699 of 2009 under section 457 read with sections 433, 434, 439 and 466 of the Companies Act thereby praying for the following relief as quoted below : "( i )Sale of the equipment and machinery held by the company under hire purchase agreements or lease agreements with different financiers/owners upon payment of the balance price and transfer/sale of such goods free from all encumbrances to the purchasers of the assets of the company as prayed for herein; ( ii )Sale of all assets including goodwill, free from all encumbrances, to the purchasers; ( iii )Sale of the above assets and all saleable assets of the company (in liquidation) free from all encumbrances as a going concern subject to payment of all dues of the employees up to the date of winding up and also post liquidation dues including current dues to the employees and re-employment of such e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to and pursuant to the order dated 1-9-2009. According to the learned Single Judge, the question of refund of the said amount would arise only after the court was fully satisfied that the company-in-liquidation, when the official liquidator resumed possession, was not poorer than what it was on the date the order of winding up had been passed. 4. Being dissatisfied, the applicant of the second application, mentioned above, and one of the two applicants of the former one preferred an appeal before this court and this court by order dated 16-2-2010 Pradip Bandyopadhyay v. Official Liquidator [2010] 154 Comp. Cas. 219 , disposed of the said appeal by vacating the interim order passed by the appellate court earlier permitting the running of the business under the order of the court passed earlier by the trial court and directed that the business of the company should immediately be stopped. We further directed that the official liquidator should, however, pay the dues of the landlord towards occupational charge from 1-9-2009, till that date at the rate fixed by the learned Single Judge of this court in the pending proceedings, i.e., Rs. 6,14,000 a month from the money lying ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t by his client in the event we refuse the other two prayers indicated above. 9. Mr. Mukherjee, learned counsel appearing on behalf of the representative of the employees, at whose instance the appellant was brought in the field, supported the contention of Mr. Mitra while the other counsel appearing on behalf of the creditors and the landlord of the premises opposed the aforesaid prayers. 10. After hearing learned counsel for the parties and after going through the materials on record, we find that the appellant is supported by a section of the employees at whose instance the learned company court permitted the appellant to run the business. Simply because by virtue of an interim order, the appellant ran the company for four months, such fact cannot enable it to have a right to purchase the business by way of private treaty without competing with the other intending purchasers in a public auction. 11. The case of Elvoc (P.) Ltd. ( supra ), was decided by a learned Single Judge by passing an order of private sale instead of public auction in the following peculiar facts of the said case : An application for sale by private treaty of the assets of the company-in-liqu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed the order vacating the earlier interim order. 13. In our opinion, the interest of the creditors and the employees as well will be best protected if the sale is held as a going concern in public auction and this Bench in the earlier appeal preferred by the representative of the section of the employees passed such direction. The appellant in their separate appeal could not place any better materials for passing a different order which would be beneficial for all concerned. 14. Similarly, we do not find any reason to pass any order for refund of the money deposited by the appellant as a condition for continuation of the business pursuant to the interim order passed in the proceedings and the learned Single Judge most judiciously observed that the question of return of such money will be considered only after the court was fully satisfied that the company-in-liquidation was not poorer than it was on the date the order of winding up had been passed. 15. We also do not find any reason to vary the order passed by us in the previous appeal disposed of by us making some specific order regarding payment to the landlord and we re-affirm that order as regards the payment to th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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