Bharucha, J. - (1.) THE relevant facts need to be set out to appreciate what is involved in these appeals from the judgment and order of a division bench of the High court at Calcutta.
(2.) IN June, 1985 a winding petition was filed against the first respondent company, now in liquidation (" the said company") on 30/09/1986 a mortgage suit (Title Suit No. 143 of J 986 was filed by the Punjab National Ban and the Bank of Baroda against the said company for recovery of the- sum .of Rs. 1,94,24,886.37 before the Subordinate Judge, Burdwan. On the same day ahypothecation suit (Suit No 736 of 1986 was filed by the United Bank of INdia, the Punjab National Bank and American Express against the said company for recovery of the sums of Rs. 20,46, 010.31 and 17,87,796.49 in the Calcutta High court. On the same day, hypothecation suit( Suit No. 737of 1986 was filed by the Allahabad Bank against the said company for recovery of the sums of Rs.29,18,360.65 and 11,64,370.00 in the Calcutta High court. Again on the same day, the Punjab On 24/04/1987, in the winding up petition aforementioned, the said company was ordered to be wound up and the Official Liquidator was directed to take possession of the said company's assets and properties. On 15/05/1987 an application was moved under Section 446 of the Companies Act by the Punjab National Bank and American Express for leave to carry on with their suits; also for transfer of the mortgage suit filed in the Burdwan court to the Calcutta High court. On 15/05/1987 the application was allowed and the suit transferred from the Burdwan court to the Calcutta High court Was numbered (T.C. Suit No.5 of 1987. In June, 1987 the Allahabad Bank made an application uder Section 446 of the Companies Act for leave to carry on with its suit and on 26/06/1987 such leave was granted. On 25/11/1987, the Official Liquidator wrote to the joint receivers in respect of the possession of the assets and records of the said company held by them. On 30/11/1987 the joint receivers replied to the Official Liquidator; therein they stated that the hypothecated goods could not be sold due to lack of offers. On 11/ 12/01/1988 the 172 Punjab National Bank made an application to the Calcutta High court in the transferred suit praying that the Official Liquidator should be appointed receiver in place and stead of the joint receivers in Suit No. 738 of 1986 with directions to take possession, make inventory and sell the securities both in the transferred suit as well as in Suit No. 738 of 1986. The application was allowed on 12/01/1988. On 28/04/1988 the joint receivers wrote to the Official Liquidato confirming that they had 'handed over possession of the securities they held to him.
(3.) ON 25/11/1988 the High court appointed a valuer of the said company's assets and properties. ON 29/06/1989 an order was passed in the winding up petition giving to the Official Liquidator leave to sell the assets and properties of the said company "by public auction by inviting sealed tenders upon advertisements once in the ' The Statesman' once in ' Jugantore' and once in ' Biswamitra' as per usual terms and conditions of sale". The sale was to be held on 15/09/1989 at 2.00 pm in court. The Official Liquidator was directed to issue the advertisements at least three weeks prior to the sale and to give notice to the valuer asking him to be present on the date of the sale. The Official Liquidator, the secured creditors and the valuer were required to act on a signed copy of the minutes of the order.. On 14/08/1989 the sale notice was issued. It stated that the sale was of the entire moveable and immovable assets of the said company lying in its factory premises at Ballavpur, Ranigunge, District Burdhaman and moveable assets lying in its registered office at Calcutta. The sale was to be on " as is where is and whatever there is" basis. The terms and conditions of sale were stated to be available at the office of the Official Liquidator.;