- (1.) Instant company application came to be filed assailing orders Ann.A/6 & Ann.A/7 dt.7.10.2005 passed by the Recovery Officer, DRT-I Delhi primarily on the premise that the property in question put to auction by recovery officer was in possession of the official liquidator and without seeking permission of the Company Court auction proceedings was without authority and could not be finalized.
(2.) The Company Court vide interim order dt.8.2.2006 initially stayed auction proceedings and directed the parties to maintain status quo in regard to the subject property and the legal question which emerged for consideration was as to whether application filed u/S.446 and 537 of the Companies Act is maintainable and the official liquidator can be allowed to take recourse of the provisions of the Companies Act where remedy is available to file appeal against the order of the recovery officer, Debt Recovery Tribunal under the Act, 1993 and taking note of the legal issue subjudice before the Apex Court at the relevant of time in B.Shoes Ltd. Vs. Indian Overseas Bank Special Leave to Appeal (Civil) No.3036/2003 wherein their Lordships of the Supreme Court vide order dt.14.11.2003 while granting leave framed the question that "whether the Debt Recovery Tribunal can direct sale of assests of a company which has been wound up and the Official Liquidator is appointed" and taking note thereof, the Company Court decided the application vide order dt.31.7.2006 and it will be appropriate to quote the extract of the operative part of the order ad infra- "For these reasons, I direct that the impugned order dt.7.10.2005 of the Recovery officer DRT-I Delhi shall remain stayed till the disposal of Special Leave to Appeal (Civil) No.3036/2003 titled B. Shoes Ltd. Vs. Indian Overseas Bank, by the Apex Court. The application stands disposed of as indicated above without any order as to costs".
(3.) Against the order dt.31.7.2006, the auction purchaser M/s. Pravesh Builder & Developer Pvt. Ltd. preferred a DB Special appeal (Company) No.132/2006 and the Division Bench while setting aside the order dt.31.7.2006 remitted the matter to the Co. Court vide judgment dt.9.5.2012 and it will be appropriate to quote relevant part of the order dt.9.5.2012 which reads ad infra- "In the facts and circumstances, therefore, the matter deserves to be remanded to the learned Company Judge for decision on the application submitted by the Official Liquidator being SB Civil Company Application No.78/2005 on merits. Accordingly, the impugned order dt.31.7.2006 passed by the learned Company Judge in SB civil Company Application No.78/2005 in SB Company Petition No.2/2002 is set aside and the case is remanded to the learned Company Judge for decision of SB Civil Company Application No.78/2005 afresh. The application No.23337 dt.28.7.2011 filed by the appellant and the application No.9371 dt.26.3.2012 filed by the applicant also stand disposed of in the light of the above. The legal question raised in the instant company application dt.78/2005 came for consideration before the Apex Court in Official Liquidator, U.P. And Uttarakhand Vs. Allahabad Bank and Others, 2013 4 SCC 381. After the judgment of the Apex Court was placed for perusal, Mr. Garg appearing for the official liquidator took time to examine the status of the OL in the matter which arises under the Act 1993 before the Debt Recovery Tribunal. The Supreme Court finally observed ad infra- 19. From the aforesaid authorities, it clearly emerges that the sale has to be conducted by the DRT with the association of the Official Liquidator. We may hasten to clarify that as the present controversy only relates to the sale, we are not going to say anything with regard to the distribution. However, it is noticeable that under Sec.19(19) of the RDB Act, the legislature has clearly stated that distribution has to be done in accordance with Sec. 529-A of the 1956 Act. The purpose of stating so is that it is a complete code in itself and the tribunal has the exclusive jurisdiction for the purpose of sale of the properties for realization of the dues of the banks and financial institutions".;