ASHOK BHUSHAN, J. - (1.) THESE two appeals have been filed against the judgment and order dated 5.12.2005 passed by the Company Judge in Miscellaneous Company Application No. 4 of 1997 (M/s. Grasim Industries Ltd. v. Uttar Pradesh Cement Corporation Ltd.).
(2.) WE have hard Sri S.P. Gupta, Senior Advocate for Dalmia Cement (Bharat) Ltd. and Sri Gaurav Banerjee, Senior Advocate for M/s. Grasim Industries Ltd., Sri Navin Sinha, Senior Advocate has been heard for the respondent Jai Prakash Associates Ltd. We have also heard Sri Ashok Mehta, advocate for Official Liquidator, Sri Anil Mehrotra for the State of U.P., Sri P.N. Tripathi for Allahabad Bank, Sri O.P. Misra for I.F.C.I, and I.C.C.I, (now taken over by Kotak Mahendra), Sri Siddhartah Singh has also appeared before us. Brief facts which are necessary to be noted for disposal of these appeals are : The Uttar Pradesh Cement Corporation Ltd. (hereinafter referred to be as the 'Corporation') was declared as Sick Industrial Company by Board of Industrial and Financial Reconstruction (BIFR) under the provisions of Sick Industrial Companies (Special Provisions) Act, 1985. The Board formed opinion that the Corporation be wound up. The opinion was forwarded to this Court vide order dated 2.7.1997. This Court by an order dated 8.12.1999 ordered for winding up of the Corporation. The State Government published advertisement on 10.2.2001 titled as "Tender notice for taking over of Cement Plant", various reliefs and concessions were mentioned in the advertisement. In pursuance of the advertisement M/s. Grasim Industries Ltd. gave its offer. The State Government applied before the Company Judge seeking approval for accepting the offer of M/s. Grasim Industries Ltd., Allahabad Bank which is a secured creditor of the Corporation filed Claim Petition O.A. No. 149 of 1999 for recovery' of its dues against the Corporation and the State Government under the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (hereinafter referred as the 1993 Act). Allahabad Bank filed objection before the Company Judge opposing the application of the State Government for accepting the offer of M/s. Grasim Industries Ltd. The Allahabad Bank raised objection before the .Company Judge that the provisions of 1993 Act have overriding effect over the Company Act, conferring exclusive jurisdiction in respect of adjudication of the claim and execution of the final order of the Tribunal and there can be no interference by the Company Judge in respect of the payment due to the Bank payable before the Debt Recover)' Tribunal. The Company Judge vide its order dated 14.2.2002 refused to approve the offer of M/s. Grasim Industries Ltd. and directed the Official Liquidator for sale of assets of the Company expeditiously. The Official Liquidator was directed to firstly explore the possibility of sale of the assets 'as a while' .as going concern', and in the alternative, by sale of assets in such parcels as may be convenient and expedient with the approval of the Court. The objection of the Allahabad Bank, which objection was also supported by the State Bank of India that 1993 Act have overriding effect over the Companies Act, was over ruled by the learned Company Judge. The Court held that the sale of assets to be made by the Official Liquidator under Section 457 of the Companies Act, was not in any manner be inconsistent with, or affect the right of adjudication of the claims of the Bank. The learned Company Judge held that the Bank do not have a right at this stage to object the sale of the assets of the Company in liquidation. Against the order of the Company Judge dated 14.2.2002 an appeal was filed by the Allahabad Bank being Special Appeal No. 346 of 2002 pressing the ground on basis of 1993 Act. An affidavit was filed in the appeal whereby the Allahabad Bank agreed to the sale of the property by this Court in winding up proceedings. In view of the above fact the Special Appeal was dismissed. M/s. Grasim Industries Ltd. has-also filed Special Appeal against the order dated 14.2.2002 which too was dismissed. Company Judge has appointed Committee for sale of assets of the Company. The Official Liquidator published a notice dated 8.8.2005 calling for expression of interest. The copy of the advertisement has been filed as Annexure-1 to the Affidavit filed in support of the appeal.
(3.) THE Assets Sale Committee held its meeting and report was submitted to the Company Judge. Certain points were raised by the intending bidders regarding certain clarification with regard to reliefs and concessions. The learned Company Judge vide order dated 26.10.2005 issued certain clarification and date for submission of financial bidding was extended till 16.11.2005. Another order was passed on 9.11.2005 extending the date for submitting the sealed tender upto 6.12.2005 by 11.00 a.m. An application was filed by Dalmia Cement (Bharat) Ltd. making certain prayers before the Company Judge, including the prayer for extension of time of receiving financial bids. The learned Company Judge passed an order on 5.12.2005 disposing of the application filed by the Dalmia Cement (Bharat) Ltd. against which order the appeal has been filed by the Dalmia Cement (Bharat) Ltd. as well as M/s. Grasim Industries Ltd. which are before us. In the appeal of Dalmia Cement (Bharat) Ltd. the reliefs claimed is that the order of Company Judge dated 5.12.2005 be set aside to the extent of not allowing the extension of time for receiving financial bids by the Assets Sale Committee and this Court may be pleased to extend the time for receiving the financial bids for a further period of four weeks. In the appeal filed by M/s. Grasim Industries Ltd. the relief claimed is to set aside the order dated 5.12.2005 and to issue direction of Official Liquidator to provide complete clarifications as requested by the appellant and to further stay the proceedings of Miscellaneous Company Application No. 4 of 1997 till such clarifications are supplied.;