- (1.) U. P. Singh, J. At the very threshold the question raised in this special appeal is : Whether in terms of Section 446 (2) (a) and (b) of the Companies Act, 1956, the learned Company Judge while disposing of the Company application was justified in giving direction that the dispute raised by the objectors in respect of their right, title and interest over six biswas of land would be decided by the civil court, where, admittedly the objectors had filed a suit No. 59 of 1994 in the court of Munsif, Ghaziabad, after the Company M/s. Pioneer Glass Works Limited had been ordered to be wound up by this court. And, whether in this view, this court alone has the jurisdiction under Section 446 (2) (a) and (b) of the Act to entertain any suit or proceedings by or against the Company or any claim by or against the Company. In other words, the contention raised is that since the Original Suit No. 59 of 1994 filed in the court of Munsif, Ghaziabad was not maintainable, the learned Company Judge ought to have declared the same to be not maintainable and should not have directed the parties to approach the court where the suit was pending.
(2.) THE provisions contained in Section 446 of the Act may be noticed : "446. Suits stayed on winding up order- (1) When a winding up order has been made or the Official Liquidator has been appointed as provisional liquidator no suit or other legal proceedings shall be commenced of if pending at the date of winding up order, shall be proceed ed with, against the company, except by leave of the Court and subject to such terms as the court may impose. (2) THE court which is winding up the company shall, notwith standing anything contained any other law for the time being in force, have jurisdiction to entertain, or dispose of- (a) any suit or proceeding by or against the company ; (b) any claim made by or against the company (including claims by or against any of its branches in India) ;" By order dated 16-2-1989 passed by this Court, M/s Pioneer Glass Works Private Limited (in liquidation) was ordered to be wound up and the Official Liquidator, High Court, was appointed be liquidator for the purposes of the winding up proceedings. The Official Liquidator, after obtaining appropriate orders from this court, took possession of the assets of the company including the plant, machinery, land and buildings and an interjectory was prepared and the assets were valued by the Company approved Valuer. On the application of the Official Liquidator this Court permitted him to sell the assets of the Company by inviting public tenders. The sale of the assets, i. e. , the plant, machinery, land and buildings of the company were widely advertised after giving opportunity to the proposed purchasers to inspect the property. The tenders were opened on 30-4-1993. Only three tenders were received and the highest did was Rs. 6,50,000. The ex-Director filed objections regarding the price offered, on which the Court directed the Official Liquidator to invite fresh tenders. In pursuance of the fresh a advertisement tenders were received and the highest offer made by M/s. Simbhaoli Sugar Mills Limited, the appellant herein, was Rs. 7,50,000 for the land, plant, machinery and the buildings of the Com pany (in liquidation ). There being no objection to the price offered, the highest offer was accepted and the entire amount was deposited with the Official Liquidator. Under Rule 272 of the Companies Rules, 1959 when the matter was listed for confirmation of the sale, objection (A-48) was filed on behalf of two persons, Sri Basudoo Singh and Banarsi Lal (respondents No, 2 and 3) claiming that they are the owners and are in possession of one Biswa and five biswas of the land respectively which had not been sold by them to the Company in liquidation and the same has been included in the list of assets prepared by the office of the Official Liquidator and are subject-matter of sale. The objectors claimed that the said land was never transferred by them to the Company in liquidation, namely M/s. Pioneer Glass Works Limited and, therefore, it may be excluded from the auction sale. These objectors, respondents No. 2 and 3 in this Special Appeal did not appear to contest the case.
(3.) THE official Liquidator filed counter-affidavit to the said objections and stated mat as per the Valuer Report, about 10,000 sq. yards was in possession of the company, whereas, according to the revenue records, the total area, if converted into sq. yards, would be about 12,800 squ. yards. According to the valuer the entire area is within the boundary wail and inside the bounded area there were factory sheds and certain constructions in dilapidated conditions. THE land is bounded by a boundary well. On 19-8-1993, the Company Judge directed that the sale be con firmed in favour of the purchaser M/s. Simbhaoli Sugar Mills Ltd. for a sum of Rs. 7,50,000 subject to final orders passed on the objections in respect of the ownerships and possession over six biswas of disputed land. The Official Liquidator was directed to hand over the possession or' the land, buildings, plant and machinery to the appellant being the auction purchaser. The Official Liquidator submitted the report on 12-9-1993 to the effect that he handed over the physical possession of the following assets to the purchasers : "a. Land 10,000 sq. yards approximately. B. Complete factory building, structures alongwith boundary wall, gates, workshop, guardroom and quarters standing on the land inside the boundary* wall or of factory of the company (in liq ). C. Plant and machinery as per description mentioned in the auction report. ";