- (1.) This appeal puts to challenge the judgment and order dt.10.2.2011 passed in Misc.Application (Inward No.24680 dt.22.11.2010) arising out of Company Appeal No.1/2009, whereby the application of the respondent No.2 herein under Rule 9 of the Company (Court) Rules, 1959 (for short hereinafter referred-to as "the Rules of 1959) questioning the proceeding initiated by the respondent Bank pertaining to auction sale of the immovable property (E-16, IPI Area, Electronics Complex, Kota), held on 22.9.2010, has been allowed.
(2.) We have heard Mr.O.P.Sharma, Director, Ocean Real Structure Pvt.Ltd., on behalf of the appellants and Mr.Sanjeev Naroliya on behalf of Mr.Prashant Jhunjhunwala (respondent No.2). No prayer for adjournment was made.
(3.) The skeletal facts indispensable for the present adjudication are that the respondent No.2 herein had filed an application under sections 397 and 398 of the Companies Act, 1956, (for short hereinafter referred-to as "the Act of 1956") against alleged oppression and mismanagement of the funds of M/s Shiv Ganga Paper Converters Private Limited (for short hereinafter referred-to as "the Company"), of which he was a Director. The application filed before the Company Law Board(for short hereinafter referred-to as "the Board") was registered as Company Petition No.19/2006. The Board vide its order dated 10.3.2009 issued certain directions and being aggrieved thereby, an appeal i.e. Company Appeal No.1/2009 was filed by the respondent Bank under Section 10F of the Act of 1956 before this Court and by an interim order passed therein, the operation of the order dt.10.3.2009 was stayed. The Bank was thereby also directed not to dispose of the assets of the Company during the pendency of the appeal. Subsequent thereto, the respondent Bank moved an application for modification of this order and by order dt.15.4.2010, the permission was granted to it for disposal of the Company's immovable assets in its possession by adopting the procedure provided in law and to keep the sale proceeds in a separate fixed deposit account to abide by the final outcome of the appeal. In granting this permission, the learned Company Judge noted that the Bank was a secured creditor and as the Company had failed to liquidate its outstanding dues, proceedings had been initiated under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short hereinafter referred-to as "the Act") and that apart from the movable assets of the Company, it (Bank) had also taken possession of immovable assets of the Company. It was observed further that notwithstanding the subsisting controversy pertaining to the oppression or the mismanagement of the Company between it and its Directors, the Bank being a secured creditor in terms of the Act, was entitled to get the security assets in the form of immovable property, disposed-of to realise the outstanding dues. Liberty was also granted to the respondent No.2 herein to participate in the auction proceedings, as and when initiated by the Bank. As the facts would disclose, auction sale of the secured immovable assets of the Company was conducted on 4.6.2010 in which the reserve price thereof was fixed at Rs.7.75 crores. The auction, however, failed eventually because of the default of the two bidders.;