SHARMA, J. - (1.) HEARD learned counsel for the parties.
(2.) INSTANT appeal impugns the order dated July 28, 2000 of the learned Company Judge whereby the appellant company was ordered to be wound up. The appellant company has challenged the winding up order mainly on the ground that the learned Company Judge should not have acted upon merely on the opinion given by the Board for Industrial and Financial Reconstruction (for short BIFR) and it ought to have applied its own mind for the purpose of arriving to a decision on winding up of the company. Having scanned the material on record we notice that the appellant company had filed S. B. Civil Writ Petition No. 6127/97 challenging the order of the BIFR recommending winding up of the company. In the said writ petition an application seeking permission to deposit the sum of Rs. 5. 67 lacs with the ICICI Bank was sought. Learned Single Judge vide order dated November 10, 2004 dismissed the writ petition as having become infructuous. The order reads as under- " The petitioner has moved application seeking permission to deposit the amount of Rs. 5. 67 lacs with the ICICI Bank. Permission is granted. The petitioner is also at liberty to deposit the amount with the Official Liquidator. Since the appeal is pending and the respondent No. 1 Company has already wound up, nothing remains in this writ petition. The writ petition is dismissed as having become infructuous with liberty to move application for revival of the writ petition. " On a close look at the said order it appears to us that in fact liberty was granted by the learned Single Judge for revival of the company. Because after dismissal of the writ petition as having become infructuous, question of revival of writ petition does not arise. It also appears that during the pendency of instant appeal XLO India Limited, a promoter company and major shareholder of the appellant company in liquidation, holding approximately 31. 37% of the paid up share capital submitted the scheme for compromise/arrangement revival/rehabilitation of the appellant company under liquidation under section 391 of the Company Act, 1956 vide application bearing No. 20/2001 Learned Company Judge passed an order on August 12, 2005 that has been placed for our perusal. Having considered the subsequent sequence of events we are prima facie satisfied that the appellant company is capable of making a revival and made sincere efforts for revival during the pendency of appeal.
(3.) FOR these reasons we allow the appeal and set aside the order dated July 28, 2000 of the learned Company Judge. We remit the case to learned Company Judge with the request to decide the creditor's petition seeking winding up of the appellant company afresh after considering subsequent events. The parties are directed to appear before the learned Company Judge. No costs. .;