TESTEELS LIMITED Vs. RADHABEN RANCHHODLAL CHARITABLE TRUST
HIGH COURT OF GUJARAT
RADHABEN RANCHHODLAL CHARITABLE TRUST
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(1.)Both those O. J. Appeals arise from the order passed in Company Petition Nos. 43 of 1986 and 44 of 1986. Both the Company Petitions were filed by different Charitable Trusts against the same appellant herein for the purpose of winding up the appellant-Company due to its inability to pay the huge rents payable to the respondents. The learned Company Judge admitted the Company Petitions and passed the following order on 29/04/1987
"Admit For the present case the request of Mr. S. I. Nanavati the matter is adjourned till reopening of the Court for the purpose of advertisement. S. O. to 25"
A similar order was passed in both the Company Petitions and as against these orders the present O. J. Appeals Nos. 9 of 1988 and 10 of 1988 have been filed. In the O. J. Appeals the appellant Testeels Limited apart from various other grounds contended that in view of the provisions under Sec. 22 of the Sick Industrial Companies (Special Provisions) Act 1985 (Act No. 1 of 1986 the Company Petitions filed by the respondent in each of these O. J. Appeals have to be dismissed. Hence the short question that arises in these O. J. Appeals is as to whether the Company Petition can be dismissed in view of Sec. 22 of the above said Act. For that purpose it is necessary to interpret Sec. 22 of the said Act.
(2.)As far as the present case is concerned no doubt the respondents in each of these O. J Appeals have compromised the matter with the appellant in each of these O. J. Appeals and the consent terms are kept on record. As fat as the appellant-Company is concerned the Board for Industrial and Financial Reconstruction in exercise of the powers conferred under sub-sec. (4) of Sec. 16 of the Sick Industrial Companies (Special Provisions) Act 1988 and all other powers enabling them in this behalf has appointed by order dated 11 until further orders one G. Mukherjee to be Special Director of Testeels Limited for safeguarding its financial and other interests. Section 16(4) of the said Act reads as follows:
"Where the Board deems it fit to make an inquiry or to cause an inquiry to be made into any industrial company under sub-sec. (1) or as the case may be under sub-sec. (2) it shall appoint one or more persons to be a special director or special directors of the company for safeguarding the financial and other interests of the company".
By another order of the same date (1988) the Board under Sec. 17 appointed ICICI as the Operating Agency for preparing a scheme for rehabilitation of the Company and the Board also have certain guidelines and a draft scheme was directed to be submitted by ICICI within 90 days.
(3.)Section 22(1) of the said Act reads as follows:
" Where In respect of an Industrial company. an inquiry under Sec. 16 if pending or any scheme referred to under Sec. 17 is under preparation or consideration or a sanctioned scheme is under implementation or where an appeal under Sec. 25 relating to an industrial company is pending then notwithstanding any thing contained in the Companies Act 1956 (1 of 1956) or any other law or the memorandum and articles of association of the industrial company or any other Instrument having effect under the said Act or other law no proceedings for the winding up of the industrial company or for execution distress or the like against any of the properties of the industrial company or for the appointment of a receiver to respect thereof shall lie or be proceeded with further except with the consent of the Board or as the case may be the Appellate Authority".
Rule 100 of the Companies (Court) Rules 1959 states that a petition for winding up shall not be withdrawn after presentation without leave of the Court.
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