Hemant Gupta, J. - (1.) THE official liquidator has sought setting aside of the sale certificate dated 9 -2 -2005, issued by respondent No. 3, in respect of the assets of the company in liquidation in terms of the recovery certificate dated 29 -4 -2003, issued under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 ('the Act').
(2.) THE petitioner -company was ordered to be wound up by this Court vide order dated 16 -12 -1999. The official liquidator attached to this Court was appointed as its liquidator. In compliance thereof, the official liquidator took possession of the factory premises of the company in liquidation situated at village Bhankpur, Tehsil Gannaur, District Sonepat on 7 -1 -2000. Respondent No. 1, Industrial Finance Corporation of India Ltd., filed an original application before the Debts Recovery Tribunal constituted under the Act for recovery of Rs. 30,32, 19,553 along with pendente lite and future interest against AVI Packaging (India) Ltd. The company in liquidation was impleaded as defendant No. 6, as guarantor. It is the case of the petitioner that respondent No. 1 has invoked the jurisdiction of the Debts Recovery Tribunal in the year 2001, without the permission of the court in terms of section 446 of the Companies Act, 1956. In execution of recovery certificate, auction notice in respect of the company in liquidation was published in daily newspapers on 23 -11 -2004. The official liquidator, thus, found that the property has been sold by way of auction on 27 -11 -2004. The official liquidator sought stay of further proceedings from this Court. On 3 -2 -2005, this Court was pleased to stay further proceedings in pursuance of auction notice. On 24 -3 -2005, stay of proceedings in respect of recovery of assets of the company was ordered to continue till further orders. It is the case of the official liquidator that in spite of communication of the order of stay dated 3 -2 -2005, the sale certificate has been issued on 9 -2 -2005. It is further pointed out that in pursuance of such certificate of sale, the auction purchaser has removed all the machinery and other movable components from the factory premises. It is, thus, prayed that any sale of assets of the company in liquidation by any other person except with the express leave of the court which passes the winding -up order is void. Therefore, the sale confirmation in favour of auction purchaser respondent No. 2 is void and liable to be set aside.
(3.) IT is the stand of respondent No. 1 that the original application was filed before the Debts Recovery Tribunal, Jaipur, on 16 -2 -2000, and it was transferred to the Debts Recovery Tribunal, Chandigarh, on the establishment of the Tribunal at Chandigarh. The original application was decided in favour of the said respondent on 29 -4 -2003. It is pointed out that the factum of winding -up was not known to the said respondent. Neither the official liquidator nor the management of the company apprised the said respondent about the factum of winding -up. It is further mentioned that a local Commissioner was appointed by the Debts Recovery Tribunal, Chandigarh, to inspect the site in June, 2004. Even in the report so submitted by the local Commissioner, it has not been pointed out that the company was under liquidation. It is pointed out that an appeal has been filed against the order dated 24 -3 -2005. Still further, it is pointed out that the auction purchaser has taken possession of the property in question prior to 7 -2 -2005. It has also been pointed out that in terms of the judgment of the Hon'ble Supreme Court in Allahabad Bank v. Canara Bank [2000] 101 Comp. Cas. 64, the Recovery Officer has complete jurisdiction and power to adjudicate upon the matter pertaining to the debts falling within the Act even if the company is under liquidation.;