Industrial Development Bank of India Vs O.L.of Bharat Pipes and Fittings Ltd.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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ORDINARY ORIGINAL CIVIL JURISDICTION

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COMPANY APPLICATION NO.296 OF 2000

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Binani Zinc Limited.. Petitioners
Versus
Alpic Finance Ltd... Applicants
and
The Official Liquidator.. Respondent
And
Industral Development Bank
of India (IDBI).. Applicant

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Mr.A.C.Zaveri i/b. B.Amin and Company for
Ex-Director of Alpic Finance
Mr.L.V.Boomer i/b. Shaunak Satpute for applicant
Mr.S.Ramakantha, Dy.O.L. present.

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CORAM :S.C.DHARMADHIKARI, J.
DATE:10th June 2008

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P.C.

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.By this companyapplication, the

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intervenor, I.D.B.I. has prayed, firstly for
leave under section 446 of the Companies Act and,
thereafter, to direct the liquidator not to sell

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and/or transfer or part with possession and/or
hand over properties/assets of the company in
liquidation viz., Bharat Pipes and Fittings Ltd.
more particularly described in prayer clauses
(c), (d) and (e). Further, a direction is sought
that the Liquidator to pay to the intervenor
arrears of lease rentals more specifically set
out in prayer clause (f) of the company
application. There are other reliefs sought but
it is not necessary to refer to them.

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2.In the affidavit in support it is stated
that the intervenor I.D.B.I. is a statutory
Corporation. After referring to the claim of
I.D.B.I. arising out of financial assistance
granted to the company in liquidation, it is
stated that the properties mentioned in the above
prayer clause so also in para 5 of the Affidavit
in support are the securities of I.D.B.I.
Thereafter, it is stated that the loan/financial
assistance was recalled because there was default

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on the part of the company in liquidation in
payment of sums. It is not necessary to refer to
these proceedings in detail inasmuch as the above
reliefs are based on the contract/financial
assistance/loan and whether the assets are
security for due repayment thereof is a matter
which on the own showing of parties has been the
subject matter of the proceedings before D.R.T.

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3.Learned Advocate appearing for the
applicant does not dispute that the D.R.T. has
passed final orders on the original application
instituted by the Intervenor and the recovery
proceedings are pending. The liquidator has
forwarded a report to this Court and in the
report has, apart from disclosing other details,
stated that O.A. No.3572 of 2000 was decreed and
recovery certificate issued. In recovery
proceedings No.50 of 2002 assets of the company
in liquidation were valued and I.D.B.I. was
allowed to file a sale proclamation. Proceedings

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pursuant to the sale proclamation were subject
matter of report of O.L. and this Court on 27th
November 2003 directed O.L. to verify whether
any raw materials were lying in factory premises
and file further report. The further report is
that there are no raw materials lying in
the said premises. The

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recovery officer has conducted sale of immovable
properties and the successful Bidder’s name
has

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also been disclosed by the O.L. The recovery
officer instructed the representative of O.L. to
hand over possession of assets to the successful
bidder. In such circumstances, the further
report was made which was granted on 22nd January
2004 by this Court. The O.L. has stated that
the recovery officer has sold properties
mentioned in para 15 of this report on 21st
November 2007. He has also stated that some
machineries were claimed by one M/s.Alpic
Finance

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Ltd. and, therefore, a meeting was held to
resolve the issue. The ex-directors of
respective companies in liquidation and
representatives were present.

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4.Now, the stand taken by the liquidator is
that he is requesting D.R.T. to keep the sale
proceeds separately till the issue of title to
machineries which are claimed by I.D.B.I., is
decided. In that behalf the O.L. states that
proceedings are pending before the D.R.T. and he
will file his response/reply therein.

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5.It is in the above circumstances and
perusing entire records and earlier orders that I
brought it to the notice of the Advocate for
intervenors that this Court cannot pass any
orders and directions on the subject company
application. If at all the intervenor decides to
initiate proceedings with regard to the machinery
or claim the sale proceeds which are lying with

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the recovery officer, D.R.T., the remedy is not
to pursue this application but to take such steps
as are permissible in law in that behalf.
However, the learned Advocate despite the matter
being adjourned reported no instructions from
I.D.B.I. In my view, perusal of the materials
would disclose that in the light of the pending
proceedings before D.R.T. and other contentious
issues involved, this application is not the
appropriate remedy for the intervenor applicant.
Once this opinion is expressed, then, it is not
fair to go into rival contentions with regard to
merits of the matter. No opinion is expressed
thereon and each of them is kept open.
Application is disposed of in the above terms.
No costs.

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(S.C.Dharmadhikari, J)

Industrial Development Bank of India v. O.L.of Bharat Pipes and Fittings Ltd.

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Industrial Development Bank of India v. O.L.of Bharat Pipes and Fittings Ltd.

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