TMI Blog2013 (1) TMI 32X X X X Extracts X X X X X X X X Extracts X X X X ..... BIFR said property was put up for sale by tender process to generate funds for implementation of a scheme - HSCL was the highest bidder and paid not only the earnest money but also sums aggregating to Rs.115.25 lacs out of the bid price of Rs.315.73 lacs till 7.1.1998 - By order dated 1.3.2006 HSCL was granted leave to deposit the balance consideration within 30 days from 1.3.2006 – Held that:- Price cannot be a factor as the Company accepted the offer of HSCL in 1996 and is seeking a revision in price in 2006, although there is no document disclosed evidencing price revision. The only document disclosed is with regard to revised payment schedule. In favour of respondent Appeal by Employees’ Union of the Company - From the order dated 25.2.2003 recommending winding up an appeal was filed by the Union - The said appeal was dismissed on 13.5.2005 - The restoration application was filed after the order dated 6.7.2005 - After the filing of appeal and before the filing of the restoration application the members of the applicant union had applied for VSS or VRS – On dated 3.3.2008 when the order was passed by the Appellate Authority there was no member of the Union – Held that:- It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r have not been satisfied as certain new terms were imposed for implementation of the offer made by HSCL. Therefore, the agreement stands terminated which termination is to the knowledge of HSCL as it has called upon the applicants to repay the money with interest. The agreement between HSCL and Avinash Raj Construction Pvt. Ltd. (ARCPL) is a private agreement and in no way is the applicant involved with the same. In fact an order was passed on a writ application filed by ARCPL (W.P. 2060 of 2003) on 29th September, 2003. An application has been filed to re-call the said order and the same is pending. BIFR s order dated 25.2.2003 no longer exists as the said order was set aside by the order dated 3rd March, 2008. Therefore the jurisdiction of the Company Court stands ousted. For the said proposition reliance is placed on the decisions reported in 89 Company Cases 609, 89 Company Cases 600 and (2000) 1 CLT 69. The order dated 6th July, 2005 has been passed contrary to the decisions cited above and the mandatory provisions of winding up and formalities of sale have not been followed as no opportunity was given to the contributories. For the said proposition reliance is placed on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut a busy body. Reliance is placed on (2006) 11 SCC 731. The Worker s Union though registered does not have a single member. There has been suppression of facts and on this ground of suppression alone the application is liable to be dismissed. For the said proposition reliance has been placed on (2007) 8 SCC 449. On acceptance of VRS the jural relationship between the Company and its employees ceases and therefore the appeal and the application herein are not maintainable. For the said proposition reliance is placed on (2003) 5 SCC 163 and (2005) 9 SCC 262. After the winding up order was passed the proceedings before AAIFR merged into the winding up order. Therefore AAIFR had no authority to hear the appeal and the order dated 3rd March, 2008 is a nullity and the winding up order revives. The order dated 3rd March, 2008 passed by AAIFR based on the doctrine of merger is a nullity. For the said proposition reliance is placed on 4 CLJ 566, AIR 1959 Calcutta 153, (1969) 2 SCR 432, AIR 1974 SC 1380, (2004) 8 SCC 724 and (2006) 5 SCC 119. An application has been filed for recalling the order passed in the writ petition. Such application is pending and no step taken for its disposa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to recall its order of dismissal nor can it review its order as it lacks inherent power to do so and without any statutory power the said cannot be exercised. Therefore the order passed by AAIFR on 3rd March, 2008 is a nullity and it cannot act beyond powers vested in it. In fact, the order of dismissal has not been set aside, by order dated 3rd March, 2008 nor has the restoration application been disposed of. Petitioner-in-Reply Counsel for the petitioner in reply submits that an application was filed under Section 466 of the 1956 Act for stay of the winding up order. BIFR s recommendation has been set aside by AAIFR and therefore there is no winding up order. Section 22 is operative and therefore no steps can be taken to sell the assets of the Company. Both the applicant and HSCL are government companies. The applicant is the sole contributory holding 100% shares. Therefore the application is maintainable. The purpose of the Scheme is to revive the Company and not to develop its properties. The doctrine of merger applies when the trial Court order merges into the order of the appeal Court and has no application here as the BIFR s order cannot merge with that of the High C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... government agencies be referred to the high powered committee. The power of the Court is inherent as held in AIR 2000 SC 941. Lack of advertisement to determine the correct market price will call for setting aside the order of sale. For the said proposition reliance is placed on (1969) 3 SCC 537 and (1999) 4 SCC 383. Therefore orders be passed as sought. Workers Union in Reply The appeal was filed in May, 2003 and in June, 2003 a circular was issued calling upon the employees to opt for VRS. VRS is not relevant as when appeal was filed VRS issue did not exist. At the time when BIFR s order was passed also the question of VRS did not exist and BIFR recommended winding up. Acceptance of VRS does not alter the position. By the order dated 2nd September, 2005 the dismissed application was restored and on restoration the bar of Section 22 of the 1985 Act revives. HSCL in Reply Counsel for HSCL in dealing with the two cases cited by the applicant submits that the same is distinguishable on facts as the sale to HSCL was after leave was obtained and as per BIFR direction, the sale is not one by Court. The order of dismissal was recalled without any reasons recorded thereby ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led to implement the scheme formulated by it, though sanctioned by BIFR. At the meeting held on 13.9.2002 the Board had issued the said directions:- (i) x x x x x x x x x x x x x x x x x x x x (ii) The Board, however, even at this stage was willing to consider fully tied up proposal for rehabilitation of the company, if the promoters viz. Ministry of Chemicals and Fertilizers are interested in revival of this company and submitted to OA within 60 days with copies to all concerned. The Board appointed United Bank of India (UBI) as Operating Agency (OA) in terms of Section 17(3) of the Act to consider such a proposal if received by the OA within 60 days from today. The OA would consider the same in the joint meeting (JM) and submit the recommendation within 30 days thereof. If an acceptable, viable and comprehensive proposal emerged in such JM, OA would submit to Board well before the hearing fixed with its report. On 25.2.2003 the views of the representative of the promoters (Ministry) was as follows:- 1. x x x x x x x x x x x x x x x x x x x x 2. x x x x x x x x x x x x x x x x x x x x 3. x x x x x x x x x x x x x x x x x x x x 4. When asked the represe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oney but also sums aggregating to Rs.1,15,25,000/- out of the bid price of Rs.315.73 lacs till 7.1.1998. In 2003 a writ application was filed by ARCPL for delivery of possession upon payment of balance sums and implementation of Tender Notice dated 8th January, 1997 wherein an order was passed on 29th September, 2003 on the basis of submissions made by the parties. Payment was directed and thereupon handing over possession of property. On the basis of the said order the order dated 1.3.2006 has been passed and although the application for re-call of order dated 29th September, 2003 has been filed the same is pending. The parties have placed correspondence exchanged between HSCL and the Company wherefrom it is evident that each wanted to resile from the Agreement for different reasons. HSCL, as the Company had not converted the land from commercial to residential inspite of payment and the Company for non-payment. By order dated 1.3.2006 HSCL was granted leave to deposit the balance consideration within 30 days from 1.3.2006. No deposit was made within the time specified as it is only thereafter that the Deed of Conveyance was to be executed. Till the filing of this application by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atsoever in that regard. The constitution of the Expert Committee was invalid as without recalling the order of dismissal the Appellate Authority was not competent to take a decision on the appeal, as implied re-calling of order is unknown to all canons of laws. Reasons have to be given for re-call of an order after considering whether there is sufficient cause to re-call. This exercise was not undertaken by the Appellate Authority. Price cannot be a factor as the Company accepted the offer of HSCL in 1996 and is seeking a revision in price in 2006, although there is no document disclosed evidencing price revision. The only document disclosed is with regard to revised payment schedule. Therefore C.A. 663 of 2006 warrants no order and order dated 1.3.2006 calls for no interference. As the order dated 24.3.2006 is in implementation of order dated 1.3.2006, the said also calls for no modification or clarification. It will not be out of context to state that the Company (in liquidation) so also HSCL are both Government owned Companies and the High Powered Committee constituted to look into the disputes of two or more Government Companies or Organizations ought to have decided t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
