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2015 (3) TMI 463 - HC - Companies LawWinding up application on the recommendation made by BIFR - Bonafide purchase of permises - Disposing power exercised prior to the commencement of winding up - Held that:- It is clear that the date of winding up by a court is the date of presentation of the petition. Given that the present two petitions were not maintainable and that the Vysya Bank petition was subsequently dismissed, the only petition whose presentation date could be reckoned for the purposes of Section 441, was, therefore, the petition on the BIFR recommendation, i.e., Company Petition No. 154 of 2007. The presentation date of that petition was 8th February 2007. By that time, the sales in favour of Pavlova had already been completed. In fact, they had been completed two years earlier. At this stage, it must be noted that the order of admission on the present two petitions filed by IFGL Refractories and MSTC was set aside on 14th December 2000. Those two petitions then lay dormant and they were only again taken up along with the BIFR suo-motu Company Petition No. 154 of 2007. The order dated 16th January 2008 allowing the present two petitions and ordering the winding up of Shri Ishar Alloy Steels Limited, could not, in my view, have been made. Those petitions, as I have noted, were clearly not maintainable and did not lie. That order ought to have been made, and made only, in the suo-motu BIFR Company Petition No. 154 of 2007. Mr. Chinoy points out that before the BIFR too, it was clear that a sale of these very office premises was very much in contemplation. This is evident inter alia from the minutes or summary record of the proceedings held on 30th March 1999 before the BIFR and also from paragraph 11 of the summary record or proceedings of the hearing held on 22nd May 2000. Indeed, the latter record indicates that it was specifically stated that the promoters of Shri Ishar Alloys would bring in ₹ 18 crores by way of their contribution, of which ₹ 2 crores would be through the sale of the office premises. There was, therefore, Mr. Chinoy submits, and in my view rightly, no injunction per se or any restraining order in respect of the sale of these premises at that time from Shri Ishar Alloys to Neco Tech or its nominees. Consequently, the further sale by Neco Tech to Pavlova could not be invalidated, in as much as Neco Tech not only paid a fair market value for the premises, but also acquired a good, clear and marketable title. The principle laid down in the case of Monark Enterprises [1991 (10) TMI 208 - HIGH COURT OF BOMBAY] is equally applicable in the current case. The disposing power was exercised and the sale to Pavlova was completed before the presentation of the suo-motu BIFR-recommended Company Petition No.154 of 2007. - Decided in favour of appellant.
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