Ashok Bhushan, J. - (1.) THIS special appeal No. 1802 of 2011 under section 483 of the Companies Act,1956 read with Rule 9 of the Company Court Rules, 1959 and Chapter VIII Rule 5 of Rules of the Court has been filed against the judgment and order dated 6.9.2011, passed by Hon'ble Company Judge in Company Petition No. 24 of 2009, filed by respondent M/s Kotak Mahindra Bank Limited (hereinafter referred as 'petitioner'). The appellant M/s Elgin Mills Co. Ltd. has been hereinafter referred as 'company'.
(2.) THE facts giving rise to this appeal briefly noted are; the company had taken financial assistance of Rs. 40 lacs from ICICI Bank in the year 1980. THE company had taken financial assistance from several other financial institutions and banks. THE company consists of two cotton mills namely; Elgin Mills No. 1 and 2, which are the subsidiaries of British India Corporation Ltd. THE British India Corporation Ltd. was taken over by the Central Government under THE British India Corporation Ltd. (Acquisition of Shares ) Act 1981. THE operation of the company are laying closed since the year 1994 and 1996 respectively. THE Company became a sick company and the matter was referred to BIFR in the year 1992. THEre has been proceedings before the BIFR in which winding up was recommended, which ultimately came to this court wherein this court directed the AAIFR to give opportunity to Government of India to submit a detail revival proposal which was approved by the Cabinet. However, after remand from AAIFR, the BIFR de-registered the reference on 3.7.2007. THE Government of India Ministry of Textiles by letter dated 18.1.2008 reconsidered the matter and the revival scheme was submitted before the Cabinet for consideration. THE matter was also considered by the Board of Reconstruction of Public Sector Enterprises (BRPSE) which had approved the revival plan on principle and the Ministry of Textiles submitted the proposal approved by BRPSE dated 18.2.2009 for approval of the Cabinet. In the meantime, ICICI Bank filed recovery proceedings before the Debt Recovery Tribunal, New Delhi by filing an application and Debt Recovery Tribunal, New Delhi passed the order dated 25.7.2002 for recovery of Rs. 3,46,40,259/- along with interest. Against the order of Debt Recovery Tribunal, New Delhi, an appeal is claimed to have been filed by the Company which is pending. On a letter written by Ministry of Textiles Government of India, the ICICI Bank vide its letter dated 17.1.2006 communicated the company that ICICI Bank is in principle agreeable to the proposal of the Government of India Ministry of Textiles envisaging payment of one time settlement amount of Rs. 16.7 million to ICICI Bank and the date for payment be indicated. The ICICI Bank by an assignment deed dated 31.3.2006 assigned its debt (principal amount of Rs. 40 lacs along with several other debts) to the petitioner M/s Kotak Mahindra Bank. After assignment M/s Kotak Mahindra moved an application before the Debt Recovery Tribunal, New Delhi for its transposition, which was allowed. The petitioner, who is assignee of ICICI Bank gave a notice claiming dues of Rs. 8,29,63,420/-. The petitioner thereafter filed a Company Petition No. 24 of 2009 for winding up in this Court. Hon'ble Company Judge vide its order dated 25.10.2010 directed for winding up of the Company under sections 433 and 434 of the Companies Act, 1956. An application for recall of the order dated 25.10.2010 was filed by the company and the order dated 25.10.2010 was recalled by order dated 18.2.2011. The petitioner M/s Kotak Mahindra filed Special (Company) appeal before the Division Bench against the order dated 18.2.2011. The Division Bench of this Court passed an interim order on 24.3.2011 staying the order dated 18.2.2011 and a direction was issued to the Official Liquidator to proceed in accordance with the Company Court Rules, 1959. The Company filed a special leave to appeal against the order dated 24.3.2011 and 26.3.2011, which special leave to appeal was disposed of by the apex Court vide its order dated 2.5.2011. "Learned Additional Solicitor General has furnished letter dated 7th April, 2011, from Controller of Accounts to the Chairman and Managing Director of BIC Limited. We direct the petitioner herein to place this letter before the Division Bench of the High Court, particularly in view of the fact that the Ministry has taken a decision to clear all outstanding dues of the Financial Institutions/ Nationalised Banks which, if cleared, would obviously avoid winding up of the Company. In the meantime, even if the liquidator takes charge of the assets, he will not proceed further to dispose them off pending appeal before the Division Bench. We request the Division to expeditiously hear and decide the appeal within six weeks. The special leave petitions, accordingly, stand disposed of." After the order of the apex Court dated 2.5.2011, the Special (Company) Appeal No. 439 of 2011 has been decided by judgment and order of this Court dated 15.7.2011. The Division Bench set aside the order dated 18.2.2011 and remanded the matter to the learned Company Judge. Before the learned Company Judge, the company filed its counter affidavit as well as detailed application stating that Government of India has now decided to rehabilitate the company and also settle the dues with other banks and financial institutions as such the winding up petition does not survive. Hon'ble Company Judge by the judgment and order dated 6.9.2011 refused to recall the order dated 25.10.2010 or to keep the order dated 25.10.2010 in abeyance. The application dated 5.9.2011 filed by the company was also rejected. Official Liquidator has been directed to take possession of the properties against which order, the present appeal has been filed.
(3.) THIS appeal was heard by this Court on 9.11.20100 on which date following order was passed: "Sri V.B.Singh, learned Senior Advocate assisted by Kirtika Singh appearing for the appellant. Sri Naveen Sinha appears for the respondent no.1, M/s Kotak Mahindra Bank Limited and an application for impleadment has been filed by IFCI to be impleaded as respondent no.3, which is allowed. Learned Counsel for the appellant contends that apart from M/s Kotak Mahindra Bank Limited, which is assignee of ICICI Bank, other Nationalised Banks, have accepted one time settlement and on the terms of principal amount plus 25/20% of the interest Eight Creditors have settled their dues out of Nine and it is only M/s Kotak Mahindra Bank, which has not accepted one time settlement. It has been submitted that the Government of India has considered and allocated money for revival of the appellant-company out of which other settlements have been made. Learned Counsel for the appellant as per our earlier order has produced Bank drafts of Rs.1.67 crores and Rs.25.3 lacs, which have been handed over to the counsel appearing for M/s Kotak Mahindra Bank Limited. Learned Counsel appearing for M/s Kotak Mahindra Bank Limited seeks time to obtain instructions as to whether M/s Kotak Mahindra Bank Limited is ready to negotiate. He submits that the Bank drafts are only conditionally taken subject to further settlement as he submits that the Bank drafts are being accepted without prejudice to their rights. Respondents are allowed four weeks' time to obtain instructions. It shall be open to the appellant to enter into negotiation with M/s Kotak Mahindra Bank, if any. List after four weeks. Till the next date of listing the order of winding up shall be kept in abeyance. Sri O.P. Mishra, learned Counsel appearing for IFCI submits that other creditors have not settled, he may also file an affidavit by the next date and give the details." We have heard Sri V. B. Singh, learned Senior Advocate, assisted by Ms. Kritika Singh for the appellant and Sri Om Prakash Mishra, learned Counsel for M/s Kotak Mahindra, the petitioner as well as for IFCI, who had been impleaded as respondent no. 3 in the appeal.;