TaxTMI 
TaxTMI 
2008 (7) TMI 583
X X X X Extracts X X X X
X X X X Extracts X X X X
....g the company in liquidation seeking to set aside the sale as void as per the orders passed in Company Application No. 1193 of 2005 in Company Petition No. 81 of 1996, dated 7-3-2006. Whereas, the appellant in the other appeal, i.e., O.S.A. No. 41 of 2007 is the third party/purchaser who having purchased the property that was sold in auction conducted by the bank and seeks to assail the very same order. 3. Briefly stated facts, which are not much in controversy are that the company in question, viz., M/s. Prism Home Appliances Private Limited was ordered to be wound up by this Court on the Original Side of Company jurisdiction as per the orders dated 13-7-1999 and consequently entire assets of the company in liquidation, as claimed by the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....under Schedule II read with rule 31 of the Rules made thereunder, notice to the Official Liquidator is mandatory and, therefore, the entire sale behind the back of the Official Liquidator is void. In support, the Official Liquidator sought to place reliance on the decision of the Supreme Court in Rajasthan State Financial Corpn. v. Official Liquidator [2005] 63 SCL 468. 5. Contesting the said application, the case of the appellant bank was total denial as to the contentions raised by the Official Liquidator and further pleading that the proceedings before the Debt Recovery Tribunal as contemplated under the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, are not subjected to any of the proceedings bef....
X X X X Extracts X X X X
X X X X Extracts X X X X
....independently unhindered by the proceedings of any winding up. 9. The learned counsel appearing on behalf of the Official Liquidator sought to place reliance on the aforesaid judgment in Rajasthan State Financial Corpn.'s case (cited supra) and submitted that all the objections raised by the appellants virtually stand answered in the said decision and, therefore, there are no merits in the said contentions or the appeal, that apart, no indulgence need be shown to either of the appeals for failure to follow the procedure as contemplated under the law. 10. Considering the submissions made and also on perusal of the material, the only question voiced on is to the effect that whether on the facts and circumstances, the sale conducted by the b....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Official Liquidator. There is no dispute to the provisions of Income-tax Act, 1961 and the rule 31 which contemplates a notice to the Court or Public Officer in custody of the property before affecting attachment. Therefore, either way, the Official Liquidator was not put on notice before the bank has taken steps for conduction of sale or auction, which is quite fatal and vitiates the proceedings. Admittedly, the entire proceedings as initiated by the bank for recovery of the said amounts after obtaining the certificate and conducting the sale etc., are much later to the orders of winding up. Therefore, having regard to the aforesaid situation and especially there being no notice issued to the Official Liquidator, the learned Single Judge ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....orporation acting under section 29 of the SFC Act seeks to sell or otherwise transfer the assets of a debtor company-in-liquidation, the said power could be exercised by it only after obtaining the appropriate permission from the Company Court and acting in terms of the directions issued by that Court as regards associating the Official Liquidator with the sale, the fixing of the upset price or the reserve price, confirmation of the sale, holding of the sale proceeds and the distribution thereof among the creditors in terms of section 529A and section 529 of the Companies Act. (iv)In a case where proceedings under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 or the SFC Act are not set in motion, the concerned cre....