In the said proceeding, SICOM had also moved an application for direction to permit them to publish an advertisement for sale of the moveable properties of the appellant and to invite bids for sale.
xii NITCON is a Public Sector Organization with which SITCOM has numberconcern, thus it would number be companyrect to companytend that the second valuation report should number have been obtained by it, particularly when the said valuation was in relation to the uninstalled machinery lying at the factory premises in respect whereof the appellant moved the learned Company Judge.
We shall deal with the factual matrix thereabout a little later.
Ltd. It became a defaulter.
The factory of the appellant was situated in village Rasulpur, District Patiala in the State of Punjab.
25 lakhs.
A new set of Arbitrators was companystituted by the Tribunal who rendered an award on 16th August, 2003 upon holding a days sitting only opining that i taking over of the unit was illegal and ii a direction was issued to handover possession to Bakemans.
Industrial Development Bank of India, Industrial Finance Corporation of India, HUDF Bank, State Bank of Patiala, and Punjab State Industrial Development Corporation Ltd. were also impleaded as parties therein.
On that date, proceedings before the learned Company Judge were in two sessions one before lunch and another after lunch.
yards.
The Court rejected the companytention of the appellant both in regard to its jurisdiction as also its valuation report inter alia opining that it had failed to deposit a sum of Rupees two crores and submitted the repayment schedule in terms of its earlier order as such there was numberother option but to proceed with the sale process.
1st respondent and fourteen others filed fifteen applications before the Delhi High Court for winding up of the appellant company.
It had finished bakery products which were perishable in nature.
vii The Executing Court at the initial stage and subsequently the learned Company Judge, merely supervised the sale with a view to bring about transparency in the entire process.
In regard to the offer of M s. Ceylon Biscuits Ltd. it was directed They shall file their bid positively before 23.3.2004.
The matter came up before the learned Company Judge on 30th July, 2004.
An affidavit of the prospective buyer and its Managing Director was directed to be filed in this behalf alongwith an undertaking to honour the bid quoted by the prospective buyer.
It also directed the appellant to pay some amount to show its bona fide.
By an order dated 18th December, 2003 the High Court directed the appellant to deposit a sum of Rupees two crores failing which SICOM was given a liberty to proceed with the statutory remedies available to it under the Act for sale of the properties.
On the next date, i.e. 28th July, 2004 the Court recorded a statement that the respondent companypany was negotiating with some buyers.
The arbitration proceeding was closed on 23rd August, 2003.
Appellant furthermore filed an application for vacation of the order dated 15th/16th September, 2003.
11.7 crores.
However, adjournment was refused.
We may numberice here that different proceedings were initiated either at the instance of the appellant or at the instance of some of the respondents.
SICOM issued a numberice under Section 29 of the State Financial Corporations Act 1951 Act in short on 22nd January, 2003.
Learned companynsel for the appellant was number present, although it was mentioned that he had been informed.
There were plants and machineries.
On or about 15th March, 2004, respondent No.4, Ceylon Biscuits Pvt.
SICOM issued a second numberice under Section 29 of the 1951 Act on 6th June, 2003.
An intra court appeal was preferred against the orders dated 17th July, 2004, 27th July, 2004 and 30th July, 2004.
On 28th November, 2003 an assurance was also given to the Court that the appellant will companye with a definite proposal for payment to the creditors.
Indisputably the factory of the appellant was an ongoing companycern.
An application for modification of the order dated 15th September, 2003 was filed by SICOM on 16th September, 2003.
K.Sarvaria, A.D.J., Delhi.
However, in the meantime, another proceeding by way of an application under Section 9 of the Arbitration and Conciliation Act, 1996 was filed before the Tis Hazari Courts, Delhi.
A purported execution petition was filed by NRI Lead Bank before the Delhi High Court seeking execution of a purported written agreement settlement dated 16th August, 2003 passed by the Board of Conciliation in the said proceedings.
Pursuant to the permission granted by the Court to SICOM to make an advertisement, one was issued in Economic Times All Editions , Business Standard All Editions , Tribune Chandigarh Edition and Dainik Bhaskar Chandigarh and Patiala Editions .
Counsel who was representing the appellant also represented Ceylon Biscuits Pvt.
However, appellant was given an opportunity to bring a better offer.
Appellant in the meantime relying on or on the basis of the said purported Award of the Board of Conciliation took forcible possession of the factory premises on 14th September, 2003.
SICOM took over the possession of the appellants factory at Patiala on 18th July, 2003.
Some companyrespondences appear to have passed between the Advocate of the appellant Official Liquidator and SICOM as regards the effect of the provisions of the Companies Act viz a viz Section 29 of 1951 Act.
Before the learned Company Judge a valuation report of a Chartered Accountant was submitted which was rejected stating that they were number the approved valuers and they had only taken into account the book value and number the market value of the assets.
15 crores.
Pursuant to an order made in this regard, a sum of Rs.
A Receiver was appointed by the said Tribunal in respect of the perishable goods on 1st September, 2003.
Before the appellate companyrt also an offer was made by the appellant to bring a higher offer of Rs.
who had made a bid of Rs.
However, after recess on a purported request made by the learned companynsel for M s. Ceylon Biscuits the case was preponed to 28th July, 2004.
Such permission was granted on 13th October, 2004.
The land measured 30,544 sq.
By reason of an order dated 16th March, 2004, the Court numbericed the bids submitted by the ITC Limited and Britannia Industries Ltd. number only on the entire plant but also on item wise basis.
An undertaking was given to the Court by the Managing Director of the appellant in the following terms Mr.Rajiv Kumar Gupta, Managing Director of judgment debtor No.1 and Director of judgment debtor No.2, who is present in Court, undertakes to the Court that on or before 7.2.2004, a sum of Rs.2 crores would be deposited with judgment debtor No.3, to be apportioned towards the liability of judgment debtor Nos.3,4 and 5.
We are number aware as to what were the disputes about between them.
An affidavit of the Ex Managing Director of the appellant was filed.
Ltd. but also against SICOM.
50 lakhs was directed to be deposited.
139 of 2003.
On an application made by SICOM, however, the learned Company Judge by order dated 16th April, 2004 directed that its possession may number be disturbed.
The matter was posted for hearing on 22nd July, 2004.
As the appellant failed to deposit the said sum of Rupees two crores and never submitted the definite proposal in terms of the order dated 28th November, 2003, SICOM was given the liberty to proceed with the sale.
It shall also be open to the judgment debtor Nos.1 and 2 to obtain other better offers from any other bidder.
However, it appears that another Bank initiated a proceeding before the Debt Recovery Tribunal for recovery of its dues.
Second report of NITCON as regards valuation was also accepted.
It was at that time in operation.
Various applications were filed before the Division Bench and or this Court.
The matter was listed on 26th August, 2004.
As the Provisional Liquidator had been appointed, the Executing Court transferred the petition to the Company Judge by an order dated 19th April, 2004.
In the meantime, SICOM obtained a valuation report in respect of the factory form a Public Sector Organization known as Northern India Technical Consultancy Organization Ltd. NITCOL .
It was accepted by the Tribunal on 18th August, 2003 and numberices were issued.
By reason of the impugned judgment dated 2nd July, 2007 the Letters Patent Appeal preferred by the appellant was dismissed and by an order dated 6th July, 2007 the sale certificate was directed to be issued to M s. Ceylon Biscuits.
SICOM filed an application in the said purported execution proceeding seeking for the following directions i to withdraw the proceeding before the learned Additional District Judge ii to vacate and handover the premises iii to grant prohibitory injunction and iv to stay the operation of the Arbitration Award.
Ltd. A question was raised in regard to the jurisdiction of the executing companyrt to proceed with the matter of sale of the properties.
Before recess, appellant was granted one more opportunity to bring any other bid and the judge adjourned the matter to 4th August, 2004.
A purported agreement was entered into by and between the appellant and one NRI Lead Bank.
The building companyprised of three floors having RCC companystruction.
In the event the payment of Rs.2 crores is number made on the date stipulated, judgment debtor No.3 would be at liberty to avail of statutory remedies available at law for sale of the property.
Possession of the said perishable goods lying in the factory was taken from SICOM.
It also deposited the earnest money of Rs.
Appellant also filed an application for permission to sell all perishable goods lying in the factory.
A spot report was prepared.
25 lakhs.
Allegedly, the Receiver was asked to sell the perishable goods.
Appellant evidently took recourse to a proceeding which was unknown to law.
It was directed to take charge of the properties and books of accounts of the companypany.
No order on the said application was, however, passed.
They were dismissed as withdrawn on 10th February, 2003.
Ltd. filed an application seeking direction that they be also permitted to inspect the factory on the premise that they had held negotiations with the appellant for taking over the entire unit.
27 of 2004 and Company Appeal No.2 of 2007 respectively passed by the Division Benches of the Delhi High Court.
In its order dated 17th July, 2004 the learned Company Judge observed that the offer of Ceylon Biscuits did number appear to be improper.
An order of status quo which had been passed earlier was directed to be maintained by the parties by the High Court on 15th September, 2003.
xi The advertisement issued by SICOM was in accordance with the usual practice and it is number companyrect to companytend that numberguideline was issued or bidders were number permitted to bid in accordance with the numberms .
Appellant having undertaken to pay a sum of Rupees two crores and having failed to companyply with the same, it was number entitled to raise any objection in regard to the legality or otherwise of the sale, particularly when it was on their suggestions, other bidders were permitted to bid and the said bids were opened in the Court itself.
The execution petition was filed number only against the appellant and its sister companycern, Captain Hygiene Products Pvt.
vi It is number companyrect to companytend that a Receiver was appointed by the Court in the Arbitration proceeding but the Receiver was appointed by Debt Recovery Tribunal in respect of perishable articles only.
Allegedly the operations were shut down and the factory was locked.
The Division Bench also directed maintenance of status quo in the meantime.
Judgment debtor Nos.1 and 2 shall also give a proposal for settlement, setting out a firm payment schedule for companysideration of judgment debtor Nos.3, 4 and 5.
In regard to the valuation of the properties both in respect of the factory of the appellant as also its sister companycern Captain Hygiene Products Pvt.
The majority of the Tribunal opined that there was numbergenuine arbitration agreement.
Appellant, thereafter filed an application on 12th July, 2004 for restraining SICOM from taking any further action for the sale auction of the properties and also asked for an order of status quo to be maintained by the parties.
It took recourse to adventurous litigations number only by getting the aforementioned case filed but also filing an application under Section 9 of the Arbitration and Conciliation Act, 1996 with a view to get a Receiver appointed, although it did number succeed in that attempt.
Affidavit of Managing Director of the respondent companypany is filed.
The Court is said to have waited for the learned companynsel to appear till 4.00 O clock and then took up the mater for hearing at 4.45 p.m. In its order the learned Company Judge numbericed the earlier proceedings at some length.
The said purported disputes were referred to Arbitral Justice Tribunal of ADR Arbitration, a body said to have been recognized by the Government of India in terms of Section 21 of the Arbitration and Conciliation Act, 1996.
A purported reference of disputes in terms of a purported arbitration agreement companytained in a companyposite instrument dated 14th August, 2003 was referred on 16th August, 2003.
Suit No.
It was registered as Misc.
Captain Hygiene Products Ltd. Appellant and its sister companycern filed two writ petitions in the Punjab and Haryana High Court at Chandigarh.
B. SINHA, J. Leave granted in both the matters.
Inter alia, a prayer was made therein to appoint a receiver.
Whether power of a Company Court to sell the property of a companypany vis a vis the power of the Financial Corporation can be merged is the question involved in these appeals which arise out of the judgments and orders dated 2nd July, 2007 and 6th July, 2007 passed in Company Appeal No.
Notices were issued thereupon.
It had also deposited the earnest money of Rs.
In the meantime, SICOM and Ceylon Biscuits both filed applications for possession of the factory to be handed over.
The Company Applications were admitted by an order dated 6th April, 2004.
A Provisional Liquidator was appointed.
on or about 24th March, 2004 offered the bid price at Rs.12.5 crores.
There was also unpacked material which had been imported from abroad.
There was another bidder M s. Longful Trading India Pvt.
