Allowed

M/S. Anuj Tex Processors Pvt.Ltd. v. the Official Liquidator of M/S.Anuj Tex Processors Pvt. Ltd.

Bombay HC13 Jun 2013CA/504/2012

Case brief

AI extract

What is this about?

Held that since the AAIFR abated the BIFR reference under SICA, the earlier recommendation for winding up no longer survives. Consequently, orders recalling the appointment of a liquidator and winding up proceedings were quashed in this company application.

What did the court decide?

Orders dated 4th March 2010 and 13th January 2012 recalled and vacated; Company Petition proceedings quashed.

M/S. Anuj Tex Processors Pvt.Ltd. Vs the Official… — Company and Corporate | Bombay HC (2013)

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20-ca-504-12

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION

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COMPANY APPLICATION NO.504 OF 2012

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COMPANY PETITION NO.1020 OF 2009 IN

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B.I.F.R. CASE NO.11 OF 2004

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M/s Anuj Tex Processors Pvt. Ltd. ....Applicants. And BIFR ....Org. Petitioner. Versus The Official Liquidator of M/s Anuj Tex Processors Pvt. Ltd. ...Respondent.

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Mr. Chetan Kapadia with Mr. Rahul Totala i/by Mr. Madhusudan G. Gawde, advocates for the applicants.

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Mr. Rakesh L. Singh i/by M.V. Kini & Co., advocate for the Secured Creditor i.e. GIIC.

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Ms. Rupa Sutar and Ms. Yogini Chauhan, AOL present.

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CORAM : RANJIT MORE, J.

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DATED : June 13, 2013.

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P.C.:

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Heard the learned counsel for the applicants, the learned

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counsel for the GIIC and the Assistant Official Liquidators.

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2 By the order dated 4^th March, 2010, the aforesaid company petition was admitted and the Official Liquidator, High Court was appointed as Provisional Liquidator of the Applicants-Company and thereafter, on 13^th January, 2012, Applicants-Company was wound up and the Official Liquidator was appointed as Liquidator of the applicantsCompany. Both these orders were passed on the basis of recommendation of the BIFR under Section 20(1) of Sick Industrial Companies (Special Provisions) Act of 1985 (In short 'SICA').

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3 The order dated 2^nd September, 2009 passed by the BIFR is annexed at Ex. C. In this order, the BIFR has recorded its conclusion that it is just, equitable and in public interest that the applicantsCompany should be wound up under Section 20(1) of the SICA. Applicants-Company has challenged this order by filing Appeal No.251 of 2009 before the Appellate Authority for Industrial & Financial Reconstruction, New Delhi. It was pointed out to the Appellate Authority that during the pendency of the proceedings before the BIFR, respondent no.2 therein namely, Kalyan Janata Sahakari Bank Ltd. had taken measures under Section 13(4) of the SARFAESI Act and obtained possession of the property of the guarantor by name, Mrs. Khimaya H.

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Aswani, which property was subsequently sold by the said creditor. Appellate authority, in these circumstances, came to conclusion that the pending reference of the applicants/Company stood abated under 3^rd proviso to Section 15(1) of SICA. Appellate Authority, however, declined to go into the merits of the case.

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4 The Applicants/Company challenged this order of the appellate Authority by filing Writ Petition ( C ) No.1836 of 2012 before the Delhi High Court. The Division Bench of the Delhi High Court by an order dated 30^th March, 2012 disposed of this writ petition. Delhi High Court directed applicants-Company to approach the AAIFR in this behalf and the AAIFR was directed to form its opinion on the issue of the fate of winding up.

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5 Appellate Authority thereafter passed the order on 22^nd April, 2013, which reads as follows:

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“ Heard the Parties present as per their attendance. The present appeal has been filed against the impugned order of BIFR dated 02.09.2009 wherein winding up of the company was ordered. This Authority while hearing the appeal abated the reference vide its order dated 23.12.2011. The appellant filed an appeal against

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the said order before the Hon'ble Delhi High Court wherein the Hon'ble High Court of Delhi, vide its order dated 30.3.2012 while upholding the abatement order of AAIFR directed that the winding up proceedings before the BIFR should also be decided. In view of the abatement of the reference of the company vide AAIFR order dated 23.12.2011, winding up proceedings before the BIFR also stands abated. Accordingly, BIFR is directed not to proceed with the winding up proceedings of the company, in view of the abatement order passed by this Authority.

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The appeal is disposed of accordingly.”

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6 The orders dated 4^th March, 2010 under which provisional liquidator was appointed, and the order dated 13^th January, 2012 under which the applicants-Company was wound up and liquidator was appointed, were passed on the basis of recommendation of the BIFR to the effect that it is just and equitable to wind up applicants-Company. The said recommendation of the BIFR no more survives in view of the subsequent order dated 22^nd April, 2013 passed by the AAIFR, New Delhi. Applicants-Company's reference before the BIFR stood abated in view of 3^rd proviso to Section 15(1) of SICA.

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7 In the above circumstances, orders dated 4^th March, 2010 and 13^th January, 2012 can not be sustained, the same deserves to be recalled and the proceedings of the above company petition deserves to be quashed.

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8 Company application is ,accordingly, made absolute in terms of prayer clauses (a) and (b) which read as follows:

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“(a) that this Hon'ble Court may be pleased to quash the proceedings in Company Petition No.1020 of 2009 pending before Hon'ble High Court of Mumbai;

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(b) that this Hon'ble Court may be pleased to recall and vacate the orders dated 4^th March, 2010 and 13^th January, 2012 passed by this Hon'ble Court in Company Petition No.1020 of 2009;”

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(RANJIT MORE, J.)

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Shivgan

M/S. Anuj Tex Processors Pvt.Ltd. v. the Official Liquidator of M/S.Anuj Tex Processors Pvt. Ltd.

Case brief

What is this about?

What did the court decide?

M/S. Anuj Tex Processors Pvt.Ltd. v. the Official Liquidator of M/S.Anuj Tex Processors Pvt. Ltd.

Case brief

What is this about?

What did the court decide?

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