9911796707
TMI Blog2009 (5) TMI 1027X X X X Extracts X X X X X X X X Extracts X X X X ..... al sheds allotted to them by the Haryana State Small Scale Industries and Export Corporation, later merged with the Haryana State Industrial Infrastructure Development Corporation. The original allotment of shed Nos. 429 to 432 made on 5-1-1988, was subsequently replaced by allotment of shed Nos. 439 to 442 by letter dated 23-6-1989. The company was an ancillary unit of HMT Ltd., Pinjore and the industrial sheds were put to use by establishing a factory for manufacturing goods. The company had availed of financial assistance from the UCO Bank to the tune of Rs. 57.50 lakhs and had also obtained other loans for their production needs. One of the creditors of the company Shri Mela Ram filed a petition for winding up and an ex parte order was passed on 29-5-1992. On the date of the winding up order, the unsecured creditors were to the tune of Rs. 43,02,884.33, preferential creditors were to the tune of Rs. 14,87,862.80 and secured creditors were to the tune of Rs. 33,75,649.33. To its own shareholders, it owed about Rs. 10 lakhs. The list of unsecured creditors and equity shareholders of the company have been enclosed as annexures P4 and P5. 4. The cost of the four industrial sheds al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eriod of four years and after the said period, the amounts payable were to be changed into hire purchase basis. In view of the default committed by the company, the allotment of sheds was cancelled by the second respondent by its letter dated 29-6-1993. In view of the cancellation of allotment, the petitioners had ceased to have any right or title in the sheds. The attempt of the official liquidator to bring the property to sale itself was opposed by the HSSIEC and this court by order dated 22-12-2000, passed in C.P. No. 91 of 1991 in C.P. No. 111 of 1992 in C.P. No. 59 of 1991 transferred the proceedings pending before it to the Debts Recovery Tribunal, Chandigarh and left the issue as regards the right of the official liquidator to effect the sale of sheds to the Tribunal. The attempt of the second respondent was, therefore, to show that the industrial sheds even on revival could not be handed over back to the petitioner-company. The third respondent at whose instance originally the petition for winding up had been filed, states in his objections that the petitioner-company had not settled the claims of the creditors and the petition itself was not bona fide. A company that is co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs and the petitioner shall file an affidavit to the effect that he has paid Rs. 21,20,653 to the unsecured creditors and shall submit the same to the official liquidator. Responding to the contention of the second respondent, he would state that after the winding up order was passed on 29-5-1992, all the assets of the company had stood vested with the official liquidator appointed by the court and no proceedings in relation to the assets of the company could have been taken by HSSIEC without taking appropriate permission under section 446 of the Companies Act. According to him, the order cancelling the allotment, which was alleged to have been made on 29-6-1993, i.e., after the date of the order of winding up is void ab initio. He relies on a decision of this court in Haryana Financial Corpn. v. Dev Papers (P.) Ltd. (In Liquidation) [2009] 150 Comp. Cas. 399, referring to section 446 of the Companies Act and its effect. This Hon ble Court had held that a decree obtained subsequent to the order of winding up without resorting to a procedure under section 446 shall be void. Reading section 537 of the Companies Act, the court ruled (page 409) : Mere enforcing execution is impermissib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt, had occasions to deal with interplay of the State Financial Corporations Act and the Companies Act and the powers under the Companies Act in relation to action of Securitisation of companies under the SARFAESI in Pegasus Asset Reconstruction P. Ltd. v. Haryana Concast Ltd. decided on March 20, 2009 in C.A. Nos. 704-705 of 2008 in C.P. No. 133 of 2003. The cancellation ordered by HSSIEC could be avoided merely in defence when the cancellation is put against the company by the fact that no sanction had been obtained from the company court. Having regard to the fact that the petitioner has offered the payment of Rs. 29,74,000 which is claimed by the second respondent, it is directed to be received by the second respondent and the order of cancellation made by the second respondent is hereby set aside. 10. The operations of winding up are essentially to ensure that all the persons who are entitled to make the claims against the company are paid off and if there is a surplus, the money shall ultimately go to the shareholders of the company itself. Now under the scheme for revival, all the creditors are sought to be paid. The objection of the third respondent has been that offer of R ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
