Bhaskar Bhattacharya, J. - (1.) This appeal is at the instance of one of the two unsuccessful applicants for stay of winding up of a company in liquidation and is directed against order dated January 8, 2010 by which the learned Company Court has dismissed two applications, one under section 466 and the other under section 457 of the Companies Act.
(2.) Being dissatisfied, one of the original applicants has come up with the present appeal.
(3.) The facts giving rise to filing of this appeal may be summed up thus: a) One SST Media Private Limited, running a news channel by the name of Kolkata TV, was directed to be wound up by the learned Company Court on May 21, 2009 in C.P. No.39 of 2009 at the instance of one of the creditors thereof. Several other winding up petitions filed by the creditors were pending and the liability of the company, as it appears from the break-up given in the application, was in the region of Rs.74 crore. b) The Official Liquidator, consequent to the order of winding up, when went to take possession, was prevented from taking possession of the assets of the company in liquidation and thereafter, one Shri Dayal Saha and another Shri Pradip Bandyopadhyay (appellant before us), claiming to have been authorised by the employees of the company in liquidation moved C.A. No.651 of 2009 under section 466 of the Companies Act thereby praying for the following relief: "i) All the orders of winding up passed by this Hon'ble Court in connection with SST Media Pvt. Limited from time to time be stayed until further order of this Hon'ble Court; ii) R.P. Techvision (India) Pvt. Ltd. of 12. Govt. Place (East), 4th, Floor, Kolkata-700069 be given liberty to file scheme of Arrangement preferably through Price Water House within such time as this Hon'ble Court may deem fit and proper; iii) Till such scheme is filed and/or till order is passed thereon the applicants be given liberty to have the Company i.e. SST Media Pvt. Ltd. be run under the management/guidance of R.P. Techvision (India) Pvt. Ltd. with necessary leave to make payment in the name of the said company SST Media Pvt. Ltd. and to have necessary receipt in the name of the said Company itself. iv) All winding up petitions and/or claims as against the Company be stayed for the time being till further order of the Court; v) All parties concerned be directed to cooperate with the said R.P. Techvision (India) Pvt. Ltd. in running the said SST Media Pvt. Ltd. with specific goal of reviving the said company; vi) Official Liquidator be directed not to take any further step in terms of the orders of winding up; vii) R.P. Techvision (India) Pvt. Ltd. be given a liberty to maintain a separate account as regards the expenses being incurred." c) In the said application, the applicants sought to give explanation for the resistance offered to the Official Liquidator in taking possession by contending that they had been sitting on "dharna" and in order to protect themselves, the employees did not allow the Official Liquidator to take possession of the assets of the company in liquidation. It was further contended that if the company went into liquidation and its assets were sold, no purpose would be served other than that of the burial of a dead person whereas if the employees were allowed to run the company under the supervision, guidance and management of one R.P. Techvision (India) Pvt. Ltd., the company might continue as a going concern and the creditors might be paid off by way of a scheme and nobody would suffer any loss and prejudice. d) The said application was taken up for hearing on 1st September, 2009 after the Official Liquidator had been allowed access, when the learned advocate appearing on behalf the company in liquidation submitted that his clients were willing to sit with all the creditors for the purpose of formulating a scheme under which their dues could be cleared, and thereafter, he would submit a proper scheme for the revivalof the company. e) On the basis of the aforesaid submission, a learned single Judge of this Court passed an order staying all further proceedings of the winding up of the company and appointing two learned advocates of this Court for the purpose of presiding over, a meeting between the promoters/financiers on the one hand and the creditors on the other. The company was allowed to continue its business and a separate account as regards income and expenditure was directed to be maintained. The matter was made returnable on 21st September, 2009. However, it appears that the said meeting could not give any fruitful result and there was none in the said meeting prepared to make any commitment to make any investment for revival or for payment of the dues of the creditors as would appear from the order dated 22nd September, 2009. The stay already granted was, however, directed to continue on condition that a sum of Rs.2 crore should be deposited with the official liquidator by 21st October, 2009 at the instance of the R.P. Techvision (India) Pvt. Limited. f) On 26th October, 2009 an affidavit was affirmed by one Shri Rana Bandyopadhyay as principal officer of R.P. Techvision (India) Pvt. Limited stating that it had deposited a sum of Rs.2 crore with the Official Liquidator on 20th October, 2009 and further stated that the registration of the company in liquidation with the Directorate of Advertising and Visual Publicity, a Government Body authorised in that behalf, would expire on 31st October, 2009. The said R.P. Techvision (India) Pvt. Limited prayed for leave as also a direction upon the Authority to have the name of the said R.P. Techvision (India) Pvt. Limited registered instead and place of the company in liquidation in order to keep the channel "Kolkata TV" active till October 31, 2009. It was also stated in the affidavit that the said R.P. Techvision (India) Pvt. Limited had been advised that the registration in the name of company in liquidation would not be granted in spite of the fact that the winding up proceedings had been stayed. g) On 28th October, 2009, the Official Liquidator was directed by the learned single Judge to apply for renewal of the registration on behalf of the company in liquidation and pay the requisite fees from the funds available with him to be reimbursed by the said R.P. Techvision (India) Pvt. Ltd. and the employees of the company at whose instance all further proceeding in connection with the winding up application had been stayed. h) The interim order staying further proceedings in winding up, as mentioned above, was extended from time to time and ultimately, on 26th October, 2009 another application was filed by one of the two original applicants (the appellant before us) which was registered as C.A. No.699 of 2009 under section 457 read with sections 433, 434, 439 and 466 of the Companies Act thereby praying for the following relief as quoted below: "i) Sale of the equipments and machinery held by the company under hire purchase agreements or lease agreements with different financiers/owners upon payment of the balance price and transfer/ sale of such goods free from all encumbrances to the purchasers of the assets of the company as prayed for herein; ii) Sale of all assets including goodwill, free from all encumbrances, to the purchasers; iii) Sale of the above assets and all saleable assets of the company (in liquidation) free from all encumbrances as a going concern subject to payment of all dues of the employees up to the date of winding up and also post liquidation dues including current dues to the employees and reemployment of such employees not exceeding 150 of ex-employees as may be necessary; iv) Charges, if any, of the secured creditors be shifted upon the sale of the assets as above to sale proceeds of the assets but the transfer to the purchaser will be free from all encumbrances; v) Until valuation of assets, advertisements and actual sale of the assets by the official liquidator the company be run as at present on the conditions imposed by Court i.e. payment of hire purchase, instalments, rent/occupation charges, license fees, auditors fees, salaries and wages and all outgoing as at present; vi) Stay of the winding up order and/or all proceedings in winding up till the disposal of this application or such time as to this Hon'ble Court may deem fit and proper; vii) In the event of the sale of the assets as mentioned above being held in favour of the present financiers viz. R.P. Techvision (India) P. Ltd. or their nominee, credit be given to them for all payments made and/or funds provided for payment of salaries, license fees, rents/ occupation charges, deposit, audit fees etc. by them as costs charges and expenses of liquidation towards the sale proceeds or repayment out of the sale proceeds to them on a preferential basis; viii) The sale of the assets of the company by held by private treaty to the aforesaid financiers viz. R.P. Techvision (India) P. Ltd. or their nominee at a price not less than the price fixed on valuation caused to be made by the official liquidator or at such price as this Hon'ble Court may fix." 1) The aforesaid application was heard from time to time and the interim order already passed was directed to continue. j) Ultimately the learned single Judge by the order impugned in this appeal has dismissed both the aforesaid applications on the ground that the nexus between R.P. Techvision (India) Pvt. Ltd., TV 9 and promoters of the company in liquidation remained a matter of mystery requiring thorough investigation. It was further held that the question whether consequential order is required to be passed particularly with regard to the question as to whether the amount of Rs.2 crore deposited with the Official Liquidator pursuant to the order of Court should be refunded or not, should be decided after the Official Liquidator made enquiry into the dealings and transactions subsequent to and pursuant to the order dated September 1, 2009. According to the learned single Judge, the question of refund of the said amount would arise only after the Court was fully satisfied that the company in liquidation, when the Official Liquidator resumed possession, was not poorer than what it was on the date of the order of winding up had been passed.;