- (1.) THESE intra court appeals witness challenge in succession to the orders dated 11.5.2007 and 20.7.2007 passed in Company Applications No.60/2004 and 22/2007 in S.B.Company Petition No.29/2003 respectively, pertaining to sale of the assets/properties of the appellant-Company by public auction. We have heard Mr.S.M.Mehta, Senior Advocate assisted by Mr.Anil Mehta for the appellant and Mr.A.K.Bhandari, Senior Advocate assisted by Ms.Sheetal Mirdha, Mr.G.K.Garg, Senior Advocate assisted by Ms.Anita Agarwal, Mr.J.K.Singhi, Senior Advocate assisted by Mr.Anuroop Singhi and Mr.P.C.Bhandari for the respondents.
(2.) FACTS in brief, indispensable for the present adjudication, are that the appellant-Company (hereafter also referred to as 'the Company') had taken loan from various financial institutions and in its bid to salvage its productive assets approached the Board for Industrial and Financial Reconstruction, New Delhi (hereafter also referred to as 'the Board') for its revival and rehabilitation under the provisions of the Sick Industrial Companies (Special Provisions) Act, 1985 (hereinafter referred to as 'SICA') together with other appropriate reliefs. The Board, however, forwarded its opinion dated 11.6.2003 under Section 20 of SICA to this Court to wind up the Company. This notwithstanding, to resuscitate itself the appellant submitted an offer for one time settlement to the Industrial Development Bank of India (IDBI), the operative agency for the consortium of secured creditors, and several parleys were held in connection therewith. While such efforts were in progress, the learned Company Judge, on a scrutiny of the records forwarded by the Board, by order dated 23.1.2004, appointed Mr.B.C.Meena as the Provisional Official Liquidator. It was thereafter that on 18.1.2007, the official liquidator issued an advertisement inviting tenders for sale of the assets of the Company. On this advertisement, the Company made necessary enquiries and it transpired that there was no judicial order permitting such sale, and that the leave to that effect had been granted only on the administrative side. It, therefore, filed an application under Rule 9 of the Company (Court) Rules, 1959 (hereinafter referred to as 'the Rules') before the learned Company Judge to recall the advertisement dated 18.1.2007. The learned Company Judge by his order dated 2.3.2007, however, on a consideration of such application, made the sale subject to the decision rendered in the company petition. The appellant-Company thereafter filed another application on 13.4.2007 praying for a copy of the application said to have been filed by the Provisional Official Liquidator seeking permission to put on sale its properties/assets and also the order passed thereon. On this, the learned Company Judge by order dated 27.4.2007 while observing that prior permission under Section 457 of the Companies Act, 1956 (hereinafter referred to as '1956 Act') had not been obtained and that the matter having been placed on the administrative side, the official liquidator was permitted to publish the tender notice on 18.1.2007, directed that the matter be placed on the judicial side. Thereby, the official liquidator was restrained from selling the assets of the appellant-Company.
(3.) THE official liquidator pursuant to this order filed another application before the learned Company Judge on 9.5.2007 under Rule 9 of the Rules pointing out that an application under Section 457(1) of the 1956 Act was in fact pending since 2004 alongwith another application for confirmation of sale. The learned Company Judge consequently, on 11.5.2007, on a consideration of the application dated 21.12.2004 and after hearing the learned counsel for the parties, empowered the official liquidator as contemplated under Section 457(1) of the 1956 Act to take necessary steps in the matter of sale of the Company's Assets by auction and finalize the bids. The process of sale, however was thereby made subject to the decision in the Company Petition No.29/2003.;