Sunil Ambwani, J. - (1.) Heard Shri Navin Sinha assisted by Shri Somesh Khare on behalf of M/s Cristina Vinimay Pvt. Ltd. (the auction purchaser from Recovery Officer, DRT, Kolkata) in the matter of Company Petition No. 77 of 1999, M/s Khetan Overseas and Finance Ltd. (In Liq.) (KOFL), Somdatt Plaza, 11th Floor, the Mall, Kanpur, for recalling the order dated 27.9.2007 passed by the Court and for directions to the Debts Recovery Tribunal, Kolkata to issue sale certificate of the assets of M/s K.H.S.L. Pvt. Ltd. at Nawabganj, Bareilly in favour of the applicant. Shri K.L. Grover appears for Dena Bank. Shri Rajnath N. Shukla and Shri Arnab Banerji appear for the Official Liquidator, U.P. Allahabad.
(2.) By an order dated 27.9.2007, the Court had held that the sale made by the Recovery Officer, DRT, Calcutta of the assets of the company (In Liq.) at Bareilly in favour of M/s Cristina Vinimay Pvt. Ltd. is illegal and inoperative and directed to proceed for sale afresh and after obtaining the orders of the High Court at Allahabad in the pending winding up petition against Khaitan Hostombe Spinels Ltd. (KHSL).
(3.) Brief facts giving rise to this application as stated in the order dated 27.9.2007 are reproduced as follows : "It is alleged by the Official Liquidator that Khaitan Hostombe Spinels Ltd. (KHSL) was directed by this Court to be amalgamated with Khetan Overseas and Finance Ltd. (KOFL). The order of amalgamation was made on 25.7.1997 approving the 'Scheme of Amalgamation', in pursuance to which KHSL was dissolved. A Company Petition No. 77 of 1999 was filed by Dhandhania Brothers Pvt. Ltd. and Company Petition No. 78 of 1999 by M/s R.D. Fan Ltd. against KOFL. The KOFL was wound up by this Court on 15.10.2003. The ex-directors have not filed statement of affairs and are not traceable. The summons sent to them have returned back unserved. The Court was not informed that KHSL was indebted to Dena Bank for about 40 crores and that the entire fraudulent scheme adopted was to first amalgamate KHSL into KOFL and thereafter get KOFL wound up to defeat the creditors. Since the statement of affairs of KOFL was not filed, it is not possible to ascertain other dues. In the meantime, Dena Bank filed an application in Debts Recovery Tribunal (DRT), Calcutta for realisation of its debts on the properties of KHSL. No one placed these facts before the DRT The claim was decreed ex parte. No one informed the DRT that KHSL had amalgamated with KOFL on 25.7.1997 and further no one informed the DRT that KOFL was wound up by this Court on 15.10.2003. In pursuance of the recovery certificate the property of KHSL at Bareilly were sold' n 30.7.2004 and property at Tanakpur were sold on 23.10.2005. The Bareilly property was purchased by M/s Christina Vinimay Pvt. Ltd. With regard to property at Bareilly sale certificate has not been issued and by an order dated 25.6.2007 of this Court the Recovery Officer, DRT was directed not to confirm the sale. M/s Christina Vinimay Pvt. Ltd. took the matter to the Calcutta High Court. When the Calcutta High Court was informed by the Official Liquidator, U.P. through Shri Arnab Banerji, Advocate that the Official Liquidator was not involved in the sale, the writ petition was dismissed. Dena Bank has filed objections stating as follows : "That before giving para wise reply to the application, hereinafter referred to as 'Application' at the outset, it is humbly submitted that Dena Bank, Respondent No. 3, had given financial assistance to KHSL Industries Limited having its registered office at Kolkata from the Industrial Finance Branch, Mumbai. M/s KHSL Industries Limited could not deposit the due instalments in time and defaulted payment inspite of repeated requests; and the Bank, having left with no other option, filed a Recovery Suit in Debt Recovery Tribunal, Kolkata as O.A. No. 237 of 1995 which was decreed in favour of the Bank, and recovery proceedings were started on 17.1.1997 before Recovery Officer, Debt Recovery Tribunal, Kolkata by Execution Case No. 12 of 1997. That the Recovery Officer took possession of the manufacturing Units of the Company at Tanakpur (Champawat) and Nawab Ganj, Bareilly on 26.9.1997 and Receiver was appointed. That the Recovery Officer also posted Security Guard in the said Units for protection of the Property cost of which was borne by Dena Bank, Respondent No. 3. That the properties in question for sale were situated within the jurisdiction of the Allahabad High Court, hence permission was sought from this Hon'ble Court for disposing of the property in pursuant to the decree passed in favour of the Bank by Debt Recovery Tribunal, Kolkata; and by order dated 10.2.1999 the Hon'ble Company Judge permitted the same. A photo copy of the order dated 10.2.1999 is enclosed as Annexure - CAI to this affidavit. That thereafter the Recovery Officer, Debt Recovery Tribunal-I I Kolkata issued notice for auction of the properties of M/s KHSL Industries Ltd. which was published in Economic Times, Kolkata, New Delhi and Mumbai editions; and in Amar Ujala, Lucknow (in Hindi) on 26.6.2004. Thereafter the properties in question at Tanakpur (Champawat) were auctioned by public auction on 30.7.2004 in favour of Atique Mallik for Rs. 10.70 lakhs and the property at Nawab Ganj, Bareilly in part (Plant and Machinery only) was sold to M/s Umang Enterprises for Rs. 94.75 lakhs. That subsequently M/s Cristina Vinimay Private Limited, preferred an appeal before the Presiding Officer against the aforesaid sale of plant and machinery of M/s Umang Enterprises and offered Rupees Two Crores Sixty Lakhs for the entire Unit (movable and immovable) and subsequently the aforesaid sale was confirmed by order dated 24.1.2006 and possession was handed over to M/s Cristina Vinimay Private Limited with a direction to appropriate the money by Bank. That the present application has been filed by the Official Liquidator for setting aside the sale confirmed by order dated 24.1.2006, as the movable and immovable properties of M/s KHSL Industries Limited situated at Nawab Ganj, Bareilly have been sold for Rs. 2.60 crores in favour of M/s Cristina Vinimay Pvt. Ltd. That the sale of the properties at Tanakpur (Champawat) which were sold in favour of Atique Mallik had already been confirmed and the sale certificate had also been issued in his favour. That the present application has been filed by the Official Liquidator on the basis of some old amalgamation held on 27.5.1997 by which M/s KHSL Industries Limited have been amalgamated with M/s Khetan Overseas and Finance Limited along with two other companies, information of which has neither been received by the answering Bank from M/s Cristina Vinimay Private Limited nor from M/s KHSL Industries Limited; and the amalgamation has been held without knowledge of the Bank; and without taking into consideration the decree which was passed by Debt Recovery Tribunal Calcutta and recovery proceedings were started by Execution Proceedings dated 17.1.1997. Subsequently it was auctioned by due publication in accordance with law on 30.7.2004. That it is noteworthy to mention here that the alleged amalgamation proceedings were held without knowledge of the answering respondent Bank and the properties were auctioned after taking due permission from this Hon'ble Court by order dated 10.2.1999. That it is also pertinent to mention here that the amalgamation proceedings which were held on 25.7.1997 were set aside by order dated 4.12.2006 passed by Hon'ble Company Judge Allahabad High Court as such the present application filed by Official Liquidator for setting aside the sale of properties is not maintainable against the answering respondent/Bank and is liable to be dismissed." With regard to Tanakpur property the Official Liquidator submits as follows : "That in the meantime Official Liquidator has received a copy of the order dated 6.6.2005 passed by the Hon'ble High Court of Uttaranchal at Nainital on the application filed by the Auction Purchaser Shri Atiq Malik that the operation of impugned order dated 5.5.2005 (D.M. Champawat, Uttaranchal) shall remain stayed till the next date of listing. However, it is made clear that the property shall be retained by the petitioner in the form as such it is. A copy of the order dated 6.6.2005 passed by the High Court at Nainital is annexed and marked as Annexure-11.";