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TMI Blog2008 (12) TMI 626X X X X Extracts X X X X X X X X Extracts X X X X ..... ase, the applicant's claim would be considered by the Official Liquidator along with others. Thus the relief prayed for by the applicant in the present application is not granted. The application is accordingly rejected. However, the applicant is permitted to lodge his claim with the Official Liquidator along with an affidavit as well as necessary proof of debt. - C.P. No. 261 of 2004 C.A. No. 73 of 2007 - - - Dated:- 29-12-2008 - K.A. PUJ, J. Anal S. Shah for the Applicant. Nandish Chudgar for the AMCO Bank Mrugesh Jani for the Official Liquidator. JUDGMENT K. A. Puj, J. -The applicant has taken out this judge's summons praying for a direction to the Official Liquidator to regularise and execute sale document in favour of the applicant in respect of the premises, i.e., 2nd Floor, Atmaram Chambers, Ahmedabad (T. P. S. No. 19, Final Plot No. 42 paiki Plot No. 5 of Usmanpura), belonging to M/s. Growmore Solvent Ltd., a company amalgamated in M/s. Kengold (India) Ltd. (in liquidation). The applicant has also prayed for the direction to the Official Liquidator not to transfer, alienate or deal in any manner with the said property. 2. An affidavit is filed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, prior to passing of any winding up order. It was the earlier commercial transaction by which the property in question was transferred in favour of the applicant. He has, therefore, submitted that the sale deed is required to be executed in favour of the applicant and hence, the Official Liquidator may be directed to execute the sale deed in favour of the applicant. 4. On notice being issued on Ahmedabad Mercantile Co-operative Bank Ltd. (AMCO), Mr. Nandish Chudgar, the learned advocate appeared and an affidavit-in-reply is filed on 1-3-2007, on behalf of the bank. It is stated in the said affidavit that the applicant is claiming to be the owner and occupier of the property in question by virtue of the alleged agreement to sell, possession note and general power of attorney allegedly executed by M/s. Growmore Solvent Ltd., in favour of the applicant on 13-5-2002. It is further stated that the said alleged documents are much subsequent in time, from the date of first deed of mortgage executed by the said company in favour of AMCO Bank, i.e., on 1-11-1999. Hence, any transfer of the said property by the company in favour of any person after the execution of mortgage deed is per s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on which shall be dealt with by the official liquidator as per the provisions of the Companies Act, 1956. The Official Liquidator has also sought permission to sell the said office premises by issuing advertisement inviting offers from the intending purchasers in consultation with AMCO Bank, the sole secured creditor of the company in liquidation. 6. Pursuant to the report filed by the Official Liquidator, affidavit-in-rejoinder is filed by the applicant dated 24-12-2008. Based on this rejoinder as well as in reply to the contentions raised by the Official Liquidator, Mr. Anal Shah, the learned advocate appearing for the applicant, in rejoinder, has submitted that this court has passed an order on 23-12-1999, in Company Petition No. 76 of 1999 with Company Petition No. 75 of 1999 sanctioning the scheme of reduction and reorganisation of share capital of Kengold (India) Ltd., and scheme of amalgamation of Growmore Solvent Ltd., with Kengold (India) Ltd. While sanctioning the scheme, this court has directed that certified copy of the order be delivered to the Registrar of Companies within 30 days of the receipt of the same. Though the certified copy of the order dated 23-12-1999, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he affairs of the company, is bound to comply with the terms and conditions of the said agreement. 9. Mr. Shah has further submitted that since civil suit being Civil Suit No. 213 of 2005 for declaration is pending in the City Civil Court, the applicant be permitted to proceed with the said suit and the present application should also be treated as an application under section 446 of the Companies Act, 1956. Lastly, he has submitted that AMCO Bank was the sole secured creditor of the company and at present, since the secured creditor has been paid its dues, it does not have any right or interest over the property in question. On various occasions, this court has directed publication of notices in the newspaper inviting claims against the company in liquidation. Despite such publication, as on date, no claims are pending against the company in liquidation. The applicant, as on March 31, 2002, was entitled to an amount of Rs. 43,37,068 from M/s. Growmore Solvent Ltd., and that the agreement to sell was executed for settlement of part of the debt that it owed to the applicant and hence, in the absence of any other claim pending against the company in liquidation, it would be prudent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r on 27-6-2006. It is true that AMCO Bank was the sole secured creditor. However, its dues are already paid off as stated by the applicant and is confirmed by Mr. Chudgar. However, that will not make the applicant entitled to claim the execution of sale deed in his favour on the basis of the agreement to sell which is absolutely illegal and unenforceable agreement. If the applicant has to recover any amount from the Growmore Solvent Ltd., and as per the scheme, if the liability is undertaken by Kengold (India) Ltd., and after the said company goes into liquidation, the only remedy available to the applicant is to lodge his claim before the Official Liquidator with proof of debt and the Official Liquidator, after satisfaction of the dues of the secured creditors and workers, if any surplus remains, in that case, the applicant's claim would be considered by the Official Liquidator along with others. 13. In the above view of the matter, the relief prayed for by the applicant in the present application is not granted. The application is accordingly rejected. However, the applicant is permitted to lodge his claim with the Official Liquidator along with an affidavit as well as necessar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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