TMI Blog2004 (8) TMI 382X X X X Extracts X X X X X X X X Extracts X X X X ..... ts have been paid by way of an advance; that the respondent-company has not completed the sale transaction within the stipulated time, in spite of several requests made by the applicant. The respondent-company having not executed the sale documents and on coming to know that the reason for not so executing the sale document was that the company petition No. 154/2002 was pending before this court, and the applicant is required permission of this court in this petition. Hence, the application has been filed. 3. The application is opposed by the counsel for the respondent. The respondent counsel has entered his appearance and also filed his objections, inter alia stated in objections that the applicant has failed to pay the balance sale consideration in terms of the contract of sale agreement etc.; that the applicant has lost all rights on agreement of sale; that the property value in question has been increased substantially for the last 16 months subsequent to the date of agreement; that the Board for Industrial Finance and Reconstruction has already made a recommendation to this court for passing an order to wind up the affairs of the respondent- company, and in such circum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mt. Vidya, learned counsel for the applicant is that the respondent-company in fact has entered into an agreement with the applicant and on that premise the Board while considering the companies application before it for rehabilitation etc., and while passing orders on the same, had reserved a right to the company to sell some of its property, if in need, after taking permission of the companies court, who is in charge of winding up proceedings and the applicant-company having paid part of the sale consideration, being keen to see the sale transaction is concluded and the respondent not being very enthusiastic in doing so, is compelled to approach this Court praying for special relief. 7. The learned counsel also submits that in fact in respect of the very company, similar applications had come up before this court for consid-eration and in identical circumstances that such application have been entertained by this court and allowed also, and as such, in terms of one such order dated 8-10-2003 passed in CO. A.771/2003, there is no impediment for this court to consider the present application and pass orders on merits. 8. Learned counsel for applicant seeks time to place f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is also dismissed. Thereafter, in terms of the order dated 17-1-2003, this Court directed issue of paper advertisement. Sri Varadaraj R. Havaldar, learned counsel for the creditors, and Sri Subramanyam, learned counsel for the respondent-company submit that such a paper publication had been taken up in the daily newspapers Deccan Herald (English Newspaper) published on 31-1-2003 and in Kannada Prabha (Kannada Newspaper) published on 31-1-2003. 13. At this stage, several applications came to be filed before this Court by many persons seeking for different reliefs and company application in CO.A.771/2003 seeking similar relief was filed and it came to be ordered on 8-10-2003 and CO.A.768/2003 came to be filed, since the prayer in this application was not tenable and subsequently several applications have been filed praying for similar direction to the respondent-company to execute sale deeds on the strength of certain agreements in favour of the applicants. 14. Though this court had directed paper publication to be taken out for the purpose of hearing all concerned with regard to the recommendation received from the Board and for the purpose of passing a winding up order, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate of passing of order of winding up by this Court are hit by the provisions of the Act and are to be voided and such is the purport provisions of the Act, it is rather doing violence to this object, if this court permits the company to sell some of its assets on the premise that there were some prior agreements between the parties. 18. I am of the clear opinion that a direction of such nature cannot be granted by the companies Court and at this stage, when it is not for the benefit of all the creditors and the shareholders, but it is a private transaction between the company and the applicant and if at all it could be for the benefit of one creditor/agreement holder of the Company. 19. Moreover the enforceability of the agreement is disputed not only by the company on the ground of breach of agreement, but also by the secured creditors, who have raised an objection that an agreement of this nature is not enforceable and not binding on them and the direction of such nature cannot be given by this court and at this stage that if at all that can be done, only before the civil court. 20. It is not necessary to examine other legal contentions in greater detail as I find, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the applicant in Company Application No. 771/2003 does not really constitute a tenable objection to an order to admit the Company Petition and to further wind up the company in terms of the recommendation of the Board. 26. The application itself was one for issue of direction to the company to execute a sale deed. The application had been ordered and is not pending before this court any more. It is not necessary that objections on behalf of such an applicant should be taken note of. The objections are not supported by any reasons. The objection is not justified on any legal ground in the circumstances. 27. The respondent-company is ordered to be wound up, on a perusal of the recommendation of the Board under section 20(1) of the Companies Act, in exercise of the powers under section 433-E of the Companies Act read with sub-section (2) of section 20 of the Sick Industrial Companies (Special Provisions) Act, 1985. 28. The Official Liquidator is directed to act as Liquidator during the winding up proceedings. Official Liquidator to take charge of the affairs of the company, its property and effects forthwith. ( a )The Official Liquidator shall cause a sealed copy of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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