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TMI Blog2023 (2) TMI 330X X X X Extracts X X X X X X X X Extracts X X X X ..... s Court was appointed as the liquidator of the company with directions to take charge of the assets and properties of the company including the property situated at Akota Road, Vadodara and deployed its security guards for safe guarding the assets and properties of the company. After following due procedures for sale of assets of the company, the Official Liquidator had put all the assets of the company including the property situated at Akota Road, Vadodara for sale. 2.2 In response to the advertisement published by the Official Liquidator, no offers were received from the intending purchasers for the purchase of land of the company situated at Akota Road, Vadodara. The applicant submitted offer before the Official Liquidator for purchase of the assets of the company for an amount of Rs.5.15 crores, which was in turn placed before this Court for due consideration. 2.3 This Court thereafter directed the Official Liquidator to publish fresh advertisement keeping the upset price at Rs.5.15 crores. Thereafter, fresh advertisement came to be published by the Official Liquidator, in accordance with the order passed by this Court. However, no offers were received then. Accordingly, thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicants of the suit and the same cannot be proceeded with till permission is obtained from the Court. 2.7 It appears that the Small Cause Court, Vadodara passed a judgment dated 05.01.2015 in Rent Suit No. 372 of 1988 thereby granting the application in favour of the applicant of the said suit i.e, the respondent no.2 therein, without taking into consideration of the order passed by this Court as well as the affidavit filed by the official liquidator. * The title in Rent Suit No. 372 of 1988 is as under: Plaintiff Baijubhai Baburao Kanojia Residing at-Ambica Mill Nr. Second gate, Vadodara. Vs. Defendants 1. Rajesh Jaykishan residing at Ambica No.1 Kankaria Bridge, Ahmedabad. 2. Ambica Mill-Through its Manager Mr. K.N.Parikhresiding at Bunglow No.2, Gautamnagar Race Course, Vadodara No.1 and 2 through their Official Liquidator- High Court of Gujarat, Jivabhai Chambers, Ashram Road, Navrangpura Ahmedabad. 2.8 It is true that the Official Liquidator has been joined in the suit proceedings on behalf of both the defendants, but he has not made any fruitful representation against any point narrated by plaintiff in the plaint at Exh,1. It must be observed that the Of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for restore. - The applicants and opponents shall bear their own cost." 5. Undisputedly, the applicant has purchased the property for a total consideration of Rs.8.60 crores and the same has been confirmed by this Court by order dated 23.12.2003 in Company Application No. 414 of 2003. Though the Official Liquidator ought to make appropriate application to join as party respondent. The Small Cause Court has erroneously construed that there is no need to seek leave under Section 446 of the Companies Act,1956 without seeking permission of this Court. Thereby passed and order dated 05.01.2015 in Rent Suit No. 372 of 1998. Notice came to be issued on 04.12.2018, various orders were passed from time to time. 6. Submissions on behalf of the applicant Learned advocate Mr. Davawala appearing on behalf of the applicant herein has submitted the averments made in the applicant and submitted that the applicant is the bonafide purchaser of the land in question Mr. Davawala has submitted that the applicant herein is the person aggrieved in view of the fact that the decree passed by the Small Cause Court, Vadodara has adversely affected the applicant. That the decree is passed without follow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Division Bench of this Court vide order dated 01.10.2012 had remanded back the matter to the Company Court with a direction to examine the matter afresh. 7.4 It is further submitted that the Company Court examined the matter afresh and rejected the COMA No.187 of 2004 filed by lessors vide order dated 10.10.2013. It is further submitted that being aggrieved by the said order, Lessors had again preferred appeal being O. J. Appeal No. 05 of 2014, which was rejected vide order dated 20.02.2015, by the Division Bench of this Court. 7.5 Furthermore, M/s. Bheruji Estates, preferred an application being COMA No. 134 of 2015 inter-alia praying this Court to direct the Official Liquidator to execute deed of conveyance by way of Assignment of Leasehold Rights in its favour. This Court vide order dated 28.04.2015 passed in COMA No. 134 of 2015 was pleased to direct the Official Liquidator to execute the deed of conveyance by way of Assignment of Leasehold Rights of Leasehold Land ad measuring 13,238.26 Sq. mtrs., lying and being at Vadodara Kasba, bearing R.S. No.482 and 483, City Survey No.1298 in favour of present applicant. In compliance of the said order, the Official Liquidator has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed an order below Ex.5, on 04.12.1999 passed in Rent Suit No.211 of 1991. 7.8 Mr. Joshi has submitted that Shri. Pravinbhai J. Patel & Others, the lessors of Survey No.482 and 483 had preferred suit being Rent Suit No. 41 of 2018 before the Ld. Small Cause Court at Vadodara. It is further submitted that the Official Liquidator filed an application under Order 7, Rule 11(d) of Code of Civil Procedure, 1908, inter-alia praying the Ld. Small Causes Court to dismiss the suit filed by the original plaintiffs as the present suit is barred by Section 446 of the Companies Act, 1956 and provisions of Limitation Act. The said application is pending before the Ld. Small Cause Court. 7.9 Therefore, he has submitted that all pending suits and legal proceedings against the company be stayed and no fresh suit or legal proceedings can be commenced without the leave of the Company Court. He has submitted that even the pending actions can be continued and a fresh action can be commenced only with the leave of the Court. It was further submitted that Section 446 of the Companies Act is to safeguard the company from being subjected to liability or being deprived of its rights and claim without the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... delay of more than two years. In this view of the matter the application may be rejected on the grounds of delay and laches. 9.3 It was further stated and submitted that for availing the redress of his claims against the said freeborn land the Applicant is at a liberty to pursue an appropriate remedy of appeal against the Judgment of the Learned Small Cause Court however the present application is not filed under the provisions of an appeal and that the Applicant erred in establishing this claim on the said land by moving an application in the company proceedings itself by invoking the mandate and provisions of the Companies Act, 1956 which are not applicable to the merits of the present case. 9.4 It was further submitted that the sale deed was on "As it where is and whatever it is basis". That it is open for the applicant to move his grievance with regard to the nature of the subject land. Mr. Mehta has submitted that the applicant was party to the said suit and was also the Official Liquidator however neither of them has not raised any objection before the trial court or before this Court. And after a period of two years all of a sudden application came to be filed by the appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficial Liquidator attached to this Hon'ble High Court as Liquidator of M/s. Shree Ambica Mills Ltd.. (In Liquidation) (here in after referred to as "Company") most respectfully submits as under: (1) That, the official liquidator has been served with copy of present application inter-alia praying this Hon'ble Court to quash and set aside Judgment dated 05.01.2015 passed in Rent Suit No. 372 of 1998 and also the Judgement dated 31.03.2017 passed in Civil Misc. Application No.26 of 2008 No.211 of 1991 as being bad in Law.That. M/s: Shri Ambica Mills Ltd. has been ordered to be wound up by the Hon'ble High Court of Gujarat vide order dated 17.01.1997 passed in Company Petition No. 66 of 1988 and the Official Liquidator attached to the Hon'ble High Court has been appointed as its Liquidator. (2) That, the Official Liquidator most respectfully submits that this Hon'ble Court has vide order dated 16.02.2000/ 24.03.2000 passed in COMA No. 466 of 1999 constituted a sale committee for sale of the assets and properties of the company in liquidation. This Hon'ble Court has vide order dated 23.12.2003 & 24.12.2003 passed in Official Liquidator's Report No.81 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith and marked as Annexure "D". (6) That being aggrieved by the aforesaid order, Sho Pravinbhai J. Patel & Others, preferred O. J. Appeal No.34 of 2005. It is further most respectfully submitted that the Hon'ble Division Bench vide order dated 01.10.2012 remanded back the matter to the Hon'ble Company Court with a direction to examine the matter afresh. A copy of the order dated 01.10.2012 is annexed herewith and marked as Annexure "E". (7) That, this Hon'ble Court examine the matter afresh and rejected the COMA No.187 of 2004 filed by lessors vide order dated 10.10.2013. It is further most respectfully submits that being aggrieved by the said order. Lessors again preferred appeal being O. J. Appeal No. 05 of 2014. The Hon'ble Division Bench has vide order dated 20.02.2015 rejected the O. J. Appeal No.05 of 2014 filed by Lessors. Copies of order dated 10.10.2013 & order dated 20.02.2015 are annexed herewith and marked as Annexure "F" & "G". (8) That, M/s. Bheruji Estates, preferred an application being COMA No. 134 of 2015 inter-alia praying this Hon'ble Court to direct the Official Liquidator to execute deed of Conveyance by way of Assignment of Leasehold ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgment dated 31.03.2017, wherein also without taking into consideration the order passed by this Court and the affidavit filed by the Official Liquidator, the Small Cause Court proceeded and passed the order in favour of the respondent nos. 3 to 5. 13. The official liquidator as referred above filed affidavits before the Court below to substantiate the stand that the suit could not be proceeded in absence of the due permission taken from the Company Court under the provisions of Section 446 of the Companies Act,1956 as referred above. The Court below appears to have proceeded on a presumption that merely joining the Official Liquidator below Exh. 65, would suffice the procedure as required under the law. 14. In view of this Court it was incumbent for the respondents herein to take permission / to take leave of this Court under section 446 of the Companies Act, 1956 before proceeding with i.e, the Rent Suit no. 372 of 1988 and Civil Misc. Application No. 26 of 2008 for restoration of the Rent Suit No. 211 of 1991. The respondents herein have accepted the fact that no permission has been sought for from this Court, inspite of the order passed by this Court dated 06.08.2009, as st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;relief' or 'remedy' with reference to any claim or right or obligation or liability. It is an application which is interlocutory in nature. An interlocutory application is not subject to any period of limitation, unless otherwise specifically provided by law. We are conscious of the fact that an application under Section 446(1) seeking leave to proceed with the suit/proceeding, is not filed as an 'interlocutory application' in the suit/proceeding before the court where such suit/proceeding is pending. But an interlocutory application is nothing but an application in the course of an action. It is a request made to a court, for its interference, in a matter arising in the progress of a proceeding. Therefore, in a broad sense, the application under section 446(1) filed before the company court seeking leave to proceed with a pending suit or proceeding, is an 'interlocutory application' with reference to the pending suit/proceeding. Article 137 is intended to apply to applications for enforcement of a claim or adjudication of a right or liability in a court. An application for leave to proceed with a pending suit or proceeding not being such an application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gard to the nature of an application under Section 446(1) of the Act, it does not attract Article 137." 15 (B) At this stage, it is apposite to refer the ratio laid down by the Apex Court in the case of Erach Boman Khavar vs Tukaram Sridhar Bhat & Ors reported in AIR 2014 SC 544 the operative part reads thus: "20. In State of J&K v. UCO Bank and others[5], while interpreting Section 446(1) of the 1956 Act, the Court opined that a suit cannot be instituted once a winding-up order is passed except by leave of the court. The two-Judge Bench referred to the earlier decision rendered in Bansidhar Shankarlal v. Mohd. Ibrahim[6], wherein the leave had been obtained at the time of filing of the suit and the question was whether fresh leave ought to be obtained before proceeding under Section 446(1) of the 1956 Act before institution of execution proceedings. The Court considered the contrary views expressed by different High Courts on the effect and purport of Section 446(1) of the 1956 Act and came to the conclusion that the view that failure to obtain leave prior to institution of suit would not debar the court from granting such leave subsequently and that the only consequence of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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