- (1.) Rajendra Kumar, son of Lallu Ram, Ex-Director, M/s Sharda Refrigeration Company (In-liquidation) is before this Court in Intra-Court Appeal under Section 483 of the Companies Act, 1956 along with provision as contained under Chapter VIII Rule 5 of the High Court Rules, targeting and assailing the judgement and order dated 29.03.2017 passed by the learned Single Judge in Company Petition No 26 of 1996 (Rajendra Kumar Vs. Official Liquidator and others) wherein learned Single Judge has rejected the claim for rehabilitation and has proceeded to approve the draft sale deed so filed and has further directed the Official Liquidator to do needful, forthwith.
(2.) Brief background of the present Special Appeal in question is that Sharda Refrigeration Company Private Limited (hereinafter referred as 'SRCPL' for the sake of brevity) is a company registered under the Companies Act, 1956 having its registered office at QT 48/48-A, Baluaghat, Allahabad. The said company was incorporated with Registrar of Companies, Kanpur vide certificate of incorporation No 20-11623 dated 07.02.1990 under the Companies Act 1956 as issued by Registrar of Companies, U.P., Kanpur. In the year 1996, the creditors of "SRCPL" had filed a petition before the Hon'ble Company Judge in Company Petition No. 26 of 1996 for its winding up, owing to its inability to pay dues. After various rounds of hearing, the High Court had directed for winding up of the "SRCPL" and for that purpose official liquidators were appointed vide judgement and order dated 23.08.2004
(3.) Official Liquidator proceeded with the sale of the properties of the company as a whole. The joint bid of Arpit Gupta and Rachit Gupta for a sum of Rs. 2.5 Crores was accepted by the Court on 10.10.2012. The purchasers duly deposited the entire amount. However, the order accepting the bid was challenged in Appeal. Division Bench of this Court disposed of the Appeal with the observation that the sale would be confirmed subject to the decision of the application filed by the Ex-Directors for rehabilitation of the Company. Pursuant to the observation so made and liberty so accorded, an application was filed on behalf of one of the Ex-Director of the Company, Rajendra Kumar on 16.07.2012 and same was considered and decided vide order dated 20.03.2013. The application was rejected on 20.03.2013. This much is also reflected from the record that two special appeal being Special Appeal No. 928 of 2013 against the order dated 20.03.2013 has been filed whereby prayer of the appellant to keep the liquidation proceedings in abeyance during pendency of consideration of his proposal for rehabilitation of the Company has been rejected and Special Appeal No. 1030 of 2013 has been filed against the order dated 16.05.2013 confirming the sale of assets of the Company to the highest tenders, respondent nos. 2 and 3 in the said appeal. In the Special Appeal No. 928 of 2013, this Court on 09.07.2013 passed following order:- "Heard the parties. While Special Appeal No. 928 of 2013 is against the order of learned Company Judge dated 20th March, 2013 whereby prayer of the appellant to keep the liquidation proceedings in abeyance during pendency of consideration of his proposal for rehabilitation of the Company has been rejected, Special Appeal No. 1030 of 2013 is against the order dated 16.05.2013 confirming the sale of assets of the Company to the highest tenderers, respondents no. 2 and 3 in the said appeal. Learned counsel for the appellant in both the appeals has submitted that once the learned Company Judge issued notices to the disclosed creditors as well as a general notice in the newspaper to invite creditors of the Company to lodge their claims by order dated 17.10.2012 in course of considering the application filed by the appellant, the provisions of Section 391 of the Companies Act required grant of an opportunity for settling all the pending claims through a meeting of the creditors who lodged their claims and also in some cases offered compromise on affidavit. Learned counsel for the appellant took the stand that, in fact, the application filed before the learned Company Judge was only an application disclosing possibility of compromise or an arrangement with the creditors and details of Scheme for rehabilitation of the Company had not been furnished before him and on that account findings have been recorded that there is no viable Scheme for rehabilitation of the Company. In other words, the stand of the appellant is that the Scheme for rehabilitation is yet to be submitted and in order to show his bona fide, different steps were taken disclosing as to how the money is being arranged for effective compromise or arrangement with the creditors. From the submissions of respondents, it appears that the application was given at a belated stage and the highest tenderers, who had submitted their tender by 15th July, 2012, have already deposited an amount of Rs. 2.5 crores offered by them and the sale has been confirmed by order under appeal dated 16th May, 2013 in Special Appeal No.1030 of 2013. At this stage, only in the interest of justice and for reviving the Company, we feel persuaded by the offer of the appellant that since the total claim of the creditors as per their affidavits comes to around Rs. 79 lacs and after deducting the money payable with the Official Liquidator amounting to Rs. 6 lacs and odd, the amount payable to Official Liquidator comes to Rs.20 lacs, he is willing to deposit a lump sum amount of Rs. 1 crore with the Official Liquidator and thereafter he shall submit a Scheme for revival of the Company for perusal and examination of the learned Company Judge. The prayer of the appellant is that the amount of Rs. 1 crore be kept in a separate interest bearing account as trust which shall abide by further orders of the Company Judge of this Court. The appellant will be satisfied if we direct the learned Company Judge that in case the amount of Rs. 1 crore is deposited with the Official Liquidator within one month and a Scheme for revival of the Company is submitted before the Company Judge within the same period, then such Scheme shall be considered afresh on its own merits keeping in view all the relevant facts. We are concerned with deposit of Rs. 2.5 crores by the successful tenderers which must be kept in mind and further proceedings under contemplation must, therefore, be disposed of expeditiously. In view of above, both the appeals are adjourned for six weeks and shall be listed after expiry of the said period. In the meantime, both the orders, i.e. order dated 20.03.2013 passed in Special Appeal No. 928 of 2013 and order dated 16.05.2013 passed in Special Appeal No. 1030 of 2013 shall remain stayed so that if the appellant deposits the amount of Rs. 1 crore and files the Scheme for revival of the Company within the time indicated above, the same be considered by the learned Company Judge in accordance with law as early as possible, preferably within a period of two weeks of deposits of money and filing of the Scheme. It is made clear that deposit of Rs. 1 crore by the appellant shall abide by the order of this Court and till further orders, this amount shall be kept by the Official Liquidator in a separate interest bearing account".;