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2015 (12) TMI 524 - HC - Companies LawWinding up proceedings - application for to in abeyance the winding up proceedings against the company including impugned action of taking physical possession of the running company by the Official Liquidator as informed vide letter dated 26.10.2015 till the reference case/appeal is finally disposed of by the authorities under the SICA - maintainability of application - Held that:- As per Section 445 of the Companies Act, 1956 when the order of winding up passed by this Court, all the officers of the company in liquidation shall be deemed to be discharged except when the business of the company continued. It is an admitted fact that the Chief Financial Officer, who has verified the present application has not produced the authority given by the Board of Directors for filing the present proceedings, when inquired it is stated that the Board of Directors had given the authority to Mr.Sanjeev Jain, Chief Financial Officer to file the proceedings before this Court and to file the affidavits in May, 2014. However, admittedly after the order of winding up is passed by this Court, applicant is having no authority from the concerned Board of Directors to initiate the proceedings before this Court, therefore, in absence of valid authority given to the Chief Financial Officer, this application is not maintainable and therefore also the same is required to be dismissed. Symbolic possession of the properties of the applicant – company in liquidation has been taken over by the provisional liquidator in August 2014, inventory has been prepared. Lead secured creditor of all consortium bank has already initiated proceedings under Section 13 of the SARFAESI Act and therefore also as per further proviso of Section 15(1) of SICA, the reference itself is abated. However, we may not decide that issue at this stage. But, primafacie, this contention is required to be kept in mind while considering this application. Further, all the preconditions of Section 15 of SICA are complied with or not is also not gone into by this Court in detail as it is not required in the present proceedings. In view of the aforesaid facts, as a Company Judge, this Court cannot modify the order passed by the Hon'ble Division Bench and therefore the applicant is required to approach before the Hon'ble Division Bench for the relief prayed for in the present proceedings, the impugned communication dated 26.10.2015 is nothing but an action taken by the Official Liquidator in pursuance to the direction given by this Court and therefore, it is not proper for this Court to entertain this application as the same is not maintainable.
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