- (1.) The present Appeal assails the Order of the learned Company Judge dated 7 th November, 2008 whereby the application of the Appellant being C.A. No.385/2007 was dismissed.
(2.) The facts as are relevant for the disposal of the present Appeal are as follows: (a) The Company in liquidation, Respondent 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 13 th January, 1998. The Appeal filed against the said final order of BIFR was dismissed by AAIFR on 28 th May, 1999. (b) A Company Petition being C.P. No. 25/1998 was registered in this Court in terms of the order dated 13 th 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 13 th September, 2004, the said winding up petition was admitted by this Court and a Provisional Liquidator was appointed. This Court vide order dated 4 th 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 13 th September, 2004 in C.P. No.428/2002, the Tehsildar and Recovery Officer, District- Morena (Madhya Pradesh) issued a proclamation for sale of the property of the Company under Section 147-C of the Madhya Pradesh Land Revenue (Code), 1959. The said proclamation was published in the daily newspaper Dainik Bhaskar on 26 th June, 2001. By this proclamation the assets of the Company, which had been attached, were sought to be sold for recovery of '1,82,30,677/- on account of electricity dues owed to Madhya Pradesh Electricity Board, as arrears of land revenue. (d) The Collector and Tehsildar, District- Morena fixed the auction for sale of assets of the Company on 24 th July, 2001 in terms of the aforesaid proclamation. When the Madhya Pradesh Financial Corporation (hereinafter referred to as MPFC?), Respondent No.2 herein, learnt of the aforesaid proclamation, it objected to the proposed auction before the Tehsildar, Recovery Officer, Morena by filing objections dated 25 th July, 2001. Although the auction scheduled for 24 th July, 2001 was postponed till 26 th July, 2001, the objections filed by MPFC were rejected. Thereafter the auction proceedings were held on 26 th July, 2001, wherein the Tehsildar in his proceedings recorded that the property of the Company in liquidation was offered for inspection to 17 persons attending the auction. The estimated value of the property sold and auctioned had been previously assessed by M/s A.K. Pathak & Associates at '47,08,800/-. In the circumstances, the minimum bid was fixed at '35 lakhs. (e) The Appellant herein submitted the highest bid at '52 lakhs and on being declared as the highest bidder, deposited a sum of '39 lakhs with the Tehsildar and Collector in accordance with law. Thereafter, the whole amount of '52 lakhs was deposited by the Appellant with the Collector. The Collector vide its letter dated 12 th February, 2002 requested the Appellant to take delivery of the movable property of the Company (except the land, building and the permanent construction on the land) lying at the premises. (f) After the receipt of the aforesaid letter from the Office of the Collector, the movable goods lying at the factory of the Company were delivered to the Appellant from 12 th February, 2002 to 25 th February, 2002. After the said movable property was sold in favour of the Appellant, MPFC filed a writ petition being W.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 25 th February, 2002. Thereafter on 17 th 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 17 th 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 28 th May, 2002 to 5 th 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 Hon?ble High Court vide order dated 18 th October, 2004 was pleased to order status quo with respect to the remaining goods. The Appellant also moved another application in W.P. No. 325/2002 seeking a direction for the delivery of the remaining goods lying at the premises of the Respondent Company. (h) The MPFC on its part moved an application being I.A. No.6197/2006 seeking a direction that the Appellant be restrained from taking delivery of the remaining goods on the ground that Appellant had allegedly taken delivery of all the remaining goods and there were no movable goods remaining which belonged to the Appellant. According to the Appellant the alleged inventory list filed by the MPFC whereby the goods were alleged to be delivered from 6 th June, 2002 to 10 th June, 2002 was fake and fabricated inventory list and that the goods mentioned therein had never been taken delivery of by the Appellant. Thereafter, the Appellant after coming to know of the said inventory list filed a writ petition being W.P. No.3148/2006 whereby the Appellant challenged the said fake and fabricated inventory list and the Madhya Pradesh High Court was pleased to issue notice of the same. (i) Since this Court in the meantime had passed an order provisionally winding up the Company in liquidation on 13 th September, 2004, MPFC filed I.A. No. 18093/2006 in its writ petition filed in Madhya Pradesh High Court seeking to withdraw the same with liberty to raise the question involved therein before this Court. Vide order dated 2 nd November, 2006 the Madhya Pradesh High Court permitted the withdrawal of the writ petition with liberty as prayed. Thereafter, the Appellant came to know that the Official Liquidator attached to this Court had published a sale notice dated 15 th February, 2007 for the sale of the land and building and the structures and the various machines pursuant to the winding up order passed by this Court. The Appellant immediately filed an application for stay of the auction in W.P. No.3148/2006 before the Madhya Pradesh High Court. Vide order dated 13 th March, 2007 the Madhya Pradesh High Court held that since the auction had been ordered by this Court therefore it would be appropriate to move this Court for staying the auction sale of the said goods. This Court in C.P. No.428/2002 had passed an order fixing the date of auction as 15 th March, 2007. (j) Pursuant to the direction of the Madhya Pradesh High Court, the Appellant approached this Court on 15 th 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 15 th March, 2007 and objected to the auction sale and prayed for stay of auction proceedings. This Court was pleased to cancel the auction for 15 th March, 2007 and adjourned the matter for 26 th April, 2007. However, since the auction with respect to the said goods was not stayed by the learned Company Judge vide order dated 15 th 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 26 th 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 '6,15,00,000/-. This Court accepted the highest bid of the Respondent No.3 and directed that upon payment of entire amount, the highest bidder would be entitled to take possession of the property of the Company in liquidation and deploy its own security guards on payment of 25% of the bid amount. The Court further directed that the auction purchaser i.e. Respondent No.3 shall not remove the machines from the premises till the entire bid amount is deposited with the Official Liquidator and possession of the premises is handed over to it. (l) Being aggrieved, the Appellant preferred two Company Appeals. The first being Company Appeal No.19/2007 was decided on 24 th April, 2007. By that order the Division Bench had expressed the hope that before directing the sale of plant, machinery and structures of the Company in liquidation, C.A. No.385/2007 would be disposed of by the Company Court. The second Company Appeal No.23/2007 was directed against the acceptance of the bid of the Respondent No.3 on 26 th April, 2007, as aforesaid, without first disposing of C.A. No.385/2007. The Company Appeal No.23/2007 was disposed of by the Division Bench on 17 th August, 2007 with the direction that C.A. No.385/2007 be examined and disposed of by the Company Court before any further directions regarding removal or appropriation of the fixtures of the machinery lying in the factory premises are issued. The Division Bench directed that till C.A. No.385/2007 was disposed of by the Company Court, the auction purchaser shall maintain status quo as regards the assets claimed by the Appellant and that the Respondent No.3 shall not remove from the factory premises or otherwise encumber any part of the machinery or other fixtures or any other movables whether or not embedded to earth pending disposal of C.A. No.385/2007. (m) The learned Company Judge after hearing the Appellant as well as MPFC and the Respondent No.3 reserved the judgment on 29 th April, 2008. Vide the impugned Judgment dated 7 th November, 2008 the Company Judge dismissed the application being C.A. No.385/2007 filed by the Appellant. Vide the impugned Order the learned Company Judge directed the appointment of a Local Commissioner and called for a report on the aspect whether the Appellant had removed from the factory premises of the Company in liquidation any machinery/parts thereof, which were attached to the earth and were, therefore, 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 7 th November, 2008, the Appellant has preferred the present Company Appeal.
(3.) On behalf of the Appellant, it was urged by Mr. Sandeep Sethi, Senior Advocate, that the Appellant had purchased all the plant, machinery and structures of the Company in liquidation and only the land, building and other permanent structures were not purchased by it. In this behalf, the Appellant has relied upon the valuation report prepared by M/s A.K. Pathak & Associates dated 28 th July, 2001. The Appellant further relied upon the proceedings recorded by the Tehsildar, DistrictMorena, at the time of auction on 26 th July, 2001, which, inter alia, reads: "the machinery, plant etc. of the debtor consumer Company available for sale was shown to the present auction bidders at the site and auction started. The present auction bidders started the auction for plant and scrap except the land, building and other permanent structure ..". "For the auction of machinery/scrap of M/s Consolidated Steels Alloys Pvt. Ltd., it was got evaluated from Sh. A.K. Pathak & Associates, Gwalior. The detailed valuation report is enclosed. The estimated value of this property has been offered as Rs. Fifty two lakhs".;