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TMI Blog2010 (2) TMI 591X X X X Extracts X X X X X X X X Extracts X X X X ..... ngle Judge of this court in the pending proceedings, i.e., ₹ 6,14,000 a month from the money lying in his hand and no further amount should be paid except in accordance with the law on usual investigations. We pass this order in favour of the landlord only because after the order of winding up when the company was permitted to run by virtue of the interim order, there is no just reason why the dues of the landlord for using his property for the sake of business for the period in question even after the order of winding up should be withheld. - A.C.O NOS. 4, 16 AND 17 OF 2010 A.P.O. NO. 11 OF 2010 C.A. NOS. 651 AND 699 OF 2009 C.P. NO. 128 OF 2007† - - - Dated:- 16-2-2010 - BHASKAR BHATTACHARYA AND PRASENJIT MANDAL, JJ. Satyabrata Mukherjee, Bimal Chatterjee, Somen Sen, Sakya Sen and M.K. Seal for the Appellant. Hirak Mitra, Amitesh Banerjee, Tilak Kumar Bose, D. Basak and Ms. Manju Bhuteria for the Interveners. A. Sarkar and Ms. Ruma Sikdar for the Official Liquidator . JUDGMENT Bhaskar Bhattacharya, J. - This appeal is at the instance of one of the two unsuccessful applicants for stay of winding up of a company in liquidation and is directe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pany; ( vi )The Official Liquidator be directed not to take any further step in terms of the orders of winding up; ( vii )R.P. Techvision (India) (P.) Ltd., be given liberty to maintain a separate account as regards the expenses being incurred." ( c )In the said application, the applicants sought to give explanation for the resistance offered to the 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 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 September 1, 2009, after the Official Liquidator had been allowed access, when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s directed by the learned Single Judge to apply for renewal of the registration on behalf of the company in liquidation and pay the requisite fees from the funds available with him to be reimbursed by the said R.P. Techvision (India) (P.) Ltd., and the employees of the company at whose instance all further proceeding 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 October 26, 2009, another application was filed by one of the two original applicants (the appellant before us) 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 equipments 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be passed particularly with regard to the question as to whether the amount of Rs. 2 crores deposited with the Official Liquidator pursuant to the order of the court should be refunded or not, should be decided after the Official Liquidator made enquiry into the dealings and transactions subsequent to and pursuant to the order dated September 1, 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 of 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 has come up with the present appeal. 5. Before us, two separate applications being A.C.O. No. 16 of 2010 and A.C.O. No. 17 of 2010 were moved by third parties thereby praying for intervention and being made parties to this appeal. We, however, after hearing learned counsel for those parties and after going through the averments made therein, find no reason to add them as parties to this appeal as for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the prayer for framing the scheme of revival having failed and having regard to the dues of the company in liquidation and the interest of the creditors including its employees, the assets of the company in liquidation should be sold in public auction as a going concern. The official liquidator should take immediate steps for continuing and/or reviving the required licences for running of the TV channel in its name so that in the public sale as a going concern, the maximum amount is fetched. It is needless to mention that R.P. Techvision (India) (P.) Ltd., will be entitled to participate in the process of auction after complying with all the formalities which will be fixed for participation in the process of auction. 11. Mr. Mukherjee, learned senior counsel appearing on behalf of the appellant, in this connection, placed strong reliance upon the decision of a learned Single Judge of this court in the case of Elvoc (P.) Ltd., In re [1982] 52 Comp. Cas. 308, where the learned Single Judge passed an order of private sale instead of public auction in the following peculiar facts of the said case : An application of sale by private treaty of the assets of a company in liqu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he court passed earlier by the trial court and continued by virtue of the order of the appellate court and the business of the company should be immediately stopped. The official liquidator should, however, pay the dues of the landlord towards occupational charges from 1-9-2009, till date at the rate fixed by the Single Judge of this court in the pending proceedings, i.e. , Rs. 6,14,000 a month from the money lying in his hand and no further amount should be paid except in accordance with the law on usual investigations. We pass this order in favour of the landlord only because after the order of winding up when the company was permitted to run by virtue of the interim order, there is no just reason why the dues of the landlord for using his property for the sake of business for the period in question even after the order of winding up should be withheld. 14. We do not interfere with the order of the learned Single Judge directing the official liquidator to take immediate possession and make necessary investigations pursuant to the order of winding up. The order awarding costs is, however, set aside in the facts and circumstances of this case and the parties are directed to be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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