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TMI Blog2011 (9) TMI 1261X X X X Extracts X X X X X X X X Extracts X X X X ..... dent No.1 herein, filed a reference under Section 15(1) of SICA before BIFR being Case No.62/1989. The BIFR after conducting an enquiry under Section 16 of SICA concluded that it would be just, equitable and in the public interest that the Company in liquidation is wound up under Section 20 of SICA vide order dated 13th January, 1998. The Appeal filed against the said final order of BIFR was dismissed by AAIFR on 28th May, 1999. (b) A Company Petition being C.P. No. 25/1998 was registered in this Court in terms of the order dated 13th January, 1998 passed by the BIFR. Further, a winding up petition was also filed by M/s Rameshwar Dass Devi Dayal against the Company in liquidation being C.P. No.428/2002. Vide its order dated 13th September, 2004, the said winding up petition was admitted by this Court and a Provisional Liquidator was appointed. This Court vide order dated 4th April, 2005 passed the final winding up order in respect of the Company in liquidation and appointed the Official Liquidator as the Liquidator of the Company. (c) It transpires that while the matter was pending consideration in this Court in C.P. No.25/1998, but before passing of the order dated 13th Septem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .P. No.325/2002 in the Madhya Pradesh High Court, whereby MPFC claimed to have the first charge on the said goods lying at the premises of the Respondent Company. The Madhya Pradesh High Court after hearing MPFC stayed the delivery of the auctioned goods in favour of the Appellant vide order dated 25th February, 2002. Thereafter on 17th May, 2002 the Madhya Pradesh High Court was pleased to modify the said order by allowing the Appellant to remove the remaining goods. Pursuant to the said order dated 17th May, 2002 the Tehsildar, Banmor, requested the Appellant to remove the remaining goods from the premises of the Respondent Company and as such the delivery process was resumed and the movable goods were delivered to the Appellant from 28th May, 2002 to 5th June, 2002. (g) According to the Appellant despite the orders of the Madhya Pradesh High Court the Appellant was unable to collect all the movable goods and structure due to the lack of cooperation on behalf of the Tehsildar and further due to the dispute with MPFC and as such the Appellant moved an application before the High Court for maintaining status quo in the matter with respect to the remaining goods in question. The H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... direction of the Madhya Pradesh High Court, the Appellant approached this Court on 15th March, 2007 i.e. the day of auction and although due to paucity of time the Appellant was unable to file an application in this Court, however his Counsel appeared before the Court on 15th March, 2007 and objected to the auction sale and prayed for stay of auction proceedings. This Court was pleased to cancel the auction for 15th March, 2007 and adjourned the matter for 26th April, 2007. However, since the auction with respect to the said goods was not stayed by the learned Company Judge vide order dated 15th March, 2007, the Appellant moved an application being C.A. No.385/2007 in C.P. No.428/2002 on the ground that the said movable goods, structures and machines lying at the premises situated at Banmor Industrial Area, District and Tehsil Morena, Madhya Pradesh belonged to the Appellant and as such should be excluded from the purview of the auction proceedings. (k) On 26th April, 2007 the bids received from the various bidders were opened and open bidding was held in the Court. M/s Cosmos Wampun Pvt. Ltd., Respondent No.3 herein, emerged as the highest bidder with a bid of Rs. 6,15,00,000/-. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, immovable property, and also to determine whether there is any movable property presently lying in the factory premises, which the Appellant can lay a claim to. The impugned Order further directed that at the conclusion of the inspection the Respondent No.3 would be entitled to deal with all the properties found on the factory premises of the Company in liquidation, irrespective of the fact that there may be some items at the factory premises of the Company in liquidation over which the Appellant may lay their claim. It was directed that the claim of the Appellant for such items, if found admissible, would be met from out of the sale proceeds deposited by the Respondent No.3 or adjusted from the value of any immovable property which may have been already removed by the Appellant. The impugned order specifically directed that C.A. No.385/2007, filed by the Appellant, was dismissed, subject to the right of the Appellant to stake their claim, if any, for the value of any movable asset, after receipt of the report of the Local Commissioner and Technical Expert. (n) Aggrieved by the said impugned Order dated 7th November, 2008, the Appellant has preferred the present Company Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... desh High Court in the aforesaid writ petition. The relevant extract from the said order reads as follows. "It is the case of Shri Mody, learned Counsel appearing for respondent no.7 that he has purchased the moveable property in auction. He, therefore, submits that he is only removing the movable property which has been purchased by him. However, Shri Jain, submits that the immovable properties are also being removed to cutting them and removing them from ground. The aforesaid fact is disputed by Shri Mody. However, it is made clear that as the respondent no.7 had only purchased the movable property, he shall only remove the movable property and she has not remove the immovable property." (b) Secondly, in the proceedings recorded by the Tehsildar on 26th July, 2001 he clearly records "in respect to the machinery of the defaulter consumer company, the present auctioneers shown the same on spot and initiated the said proceedings. By leaving to land, building and other permanent fixtures, the auctioneers started the auction of plant and scrap. Because the land is related with industrial department, therefore auction proceeding for land and building will be initiated thereaf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the site and therefore the action of handing over movable property closed. The main entrance of factory was sealed." (e) Lastly, the communication dated 1st March, 2005 addressed to the Official Liquidator of this Court by the Additional Tehsildar, Sub-Tehsil, Banmore, District- Morena, Madhya Pradesh, clearly states that the Tehsildar, Morena had for the present only auctioned movable property i.e. properties which are lying on the site and was not embedded in the earth. The factory sheds and the machinery which were embedded in the earth and plant and machinery were still present in the factory and they were not auctioned. Relevant extract of the said communication dated 1st March, 2005 reads as follows: "2. At present only moveable property has been auctioned. Only those properties which were lying on the site and were not embedded in earth were included. The Factory sheds and the machinery which were embedded in the earth and Plant and Machinery are still present in the factory and they were not auctioned. A list of the assets is enclosed." 6. There is also no force in the reliance placed on the valuation report of M/s A.K. Pathak & Associates by the Appellant. As found ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h, the Court came to the conclusion that based on the record as it existed then it was not possible for the Court to come to any definite conclusion on this aspect. In this behalf, in Paragraph 35 of the impugned Order the learned Single Judge observed as follows: "35. From this it prima facie appears that M/s Gupta Refractories have not only removed the movables, but in the garb of removing movables they have even removed the parts of the plant and machinery which was assembled and installed at the site, and were attached to the earth. From the materials placed on record as at present, it is not possible for the Court to come to any definite conclusion on this aspect, or as to the quantity, nature, weight and value of the items dismantled from the plant and machinery at the factory site in question, if any." 9. In order to resolve the controversy whether the Appellant had removed from the factory premises of the Company in liquidation any machinery/parts thereof attached to the earth and therefore immovable property and also to determine whether there was any movable property presently lying in the factory premises which the claimant could lay a claim to, the learned Single Jud ..... X X X X Extracts X X X X X X X X Extracts X X X X
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