AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2013 (1) TMI 32
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....ion (BIFR) in 1992. An order was passed on 25th February, 2003 recommending winding up of the Company (in liquidation). An appeal was filed by the Workers' Union before the Appellate Authority (AAIFR). Such appeal was dismissed on 13th May, 2005 and thereafter restored and order passed setting aside the order recommending winding up passed by BIFR. Prior to the order of AAIFR the matter was placed under Section 20 of the 1985 Act before the Company Court and by order dated 6th July, 2005 an order of winding up was passed. The applicant seeks stay of the winding up order as bonafide steps has been taken by the contributory to revive the Company (in liquidation) on the basis of a revival report submitted. United Bank of India is the only secured creditor of the Company and a compromise has been reached with it. The basis for calling tenders for sale of 392.04 cottahs of land at 88, Akshay Kumar Mukherjee Road, Calcutta no longer exists as the offer made though accepted initially was subject to a forfeiture clause. The terms of the offer have not been satisfied as certain new terms were imposed for implementation of the offer made by HSCL. Therefore, the agreement stands terminated w....
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....ng up an application (CA 92 of 2006) was filed in February, 2006 by HSCL for a direction upon the Official Liquidator to accept the balance sum. Such application was allowed by order dated 1st March, 2006 wherefrom no appeal has been filed. The application filed by the contributory (CA 662 of 2006) is subsequent to the application filed by HSCL. In fact, in 1976 the Union of India, a 100% share holder of the company abandoned it and at the direction of BIFR took steps to sell the surplus land by a tender in 1996. The agreement between HSCL and the Company was made when BIFR was in seisin of the matter. By C.A. 662 of 2006 the Company seeks stay of winding up and by C.A. 663 of 2006 the Company seeks to recall the order dated 1st March, 2006 and modification of order dated 24th March, 2006. The application of the Workers' Union is also for stay of winding up. In fact, the workers have accepted Voluntary Retirement and received payments under such Scheme. Therefore the workers have no locus standi and the Union is nothing but a busy body. Reliance is placed on (2006) 11 SCC 731. The Worker's Union though registered does not have a single member. There has been suppression of facts a....
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.... to the tender floated. The monies paid by HSCL was paid by ARCPL and therefore W.P No. 2060 of 2003 was filed by ARCPL and orders passed. An application for recalling has been filed by the contributory but no step has been taken thereunder. An application was filed in 2004 by ARCPL before the Company Court and payments directed. The steps mentioned above have been taken by ARCPL as its money is at stake. The winding up order was passed when no order was passed by AAIFR. In fact, after the winding up order was passed it was incumbent on the Workers' Union to obtain leave under Section 446 of the Companies Act, 1956 to continue the proceedings before AAIFR. AAIFR is a Tribunal guided by the Civil Procedure Code and the order dated 3rd March, 2008 has been passed on the workers' application. The proposal of Concept was rejected on consideration. Therefore the same cannot be accepted as held in (1969) 2 SCR 432. An application before AAIFR was dismissed and restoration application was filed. AAIFR is not empowered to recall its order of dismissal nor can it review its order as it lacks inherent power to do so and without any statutory power the said cannot be exercised. Therefore the....
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....t notice to the applicant. In the writ petition filed by ARCPL an order was passed but no step was taken therefore the writ petition was jettisoned and C.A. 92 of 2006 was filed. In W.P. No. 2060 of 2003 an application for re-call of order dated 29th September, 2003 is pending. The procedure of sale has not been followed as no reserve price has been fixed, and no advertisement published. Therefore the order is a nullity. The sale is without jurisdiction and the winding up order is also without jurisdiction as the process of winding up has not been followed. A mere recommendation of BIFR has been stamped by the winding up order passed and with the appellate authority setting aside the BIFR's order the winding up order cannot be sustained. The winding up Court has made no decision on merit but has accepted the recommendation without any finding. The decisions cited are distinguishable. There is a report for revival and in the application filed the applicant is seeking revival. The conflict between two government agencies be referred to the high powered committee. The power of the Court is inherent as held in AIR 2000 SC 941. Lack of advertisement to determine the correct market p....
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.... winding up revived. The opinion formed under Section 20(1) of the 1985 Act by BIFR was forwarded to the High Court and on 6.7.2005 an order of winding up was passed. No appeal has been filed therefrom. Instead this application has been filed on the basis of the constitution of the Expert Committee. The Appellate Authority was not empowered to consider the appeal or the re-call application in view of the order dated 6.7.2005. All employees of the Company had accepted VRS on 30.9.2003. Therefore the Employees' Union could not have maintained the Appeal as the only appeal filed was by the Employees' Union being aggrieved by the order dated 25.2.2003 and in view of the subsequent event the appeal so also the application for re-call ought to have been dismissed by virtue of the doctrine of merger. In fact at the meeting held on 25.2.2003 by BIFR it was specifically recorded that the Ministry of Chemical & Fertilizers, Government of India was the promoter of the Company and had failed to implement the scheme formulated by it, though sanctioned by BIFR. At the meeting held on 13.9.2002 the Board had issued the said directions:- "(i) x x x x x x x x x x x x x x x x x x x....
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....ht for re-call of order dated 1st March, 2006 and modification of order dated 24th March, 2006 on the ground of suppression of facts, increase in price of the land since 1996 and termination of the sale contract which has been accepted by HSCL. The subject property belonged to the Company and after taking leave from BIFR which was granted on 9th October, 1996 the said property was put up for sale by tender process to generate funds for implementation of a scheme. It is not correct for the applicant to say that procedure of sale was not followed when such procedure was to be followed by the Company and none else and it is the Company if at all who did not follow the procedure and agreed to give it to HSCL who according to the Company was the highest bidder. The sale was being effected to raise funds for revival and was outside the Scheme. In fact the High Court had no role to play in sale of the subject land to HSCL except for directing payment of the balance sum. HSCL was the highest bidder and paid not only the earnest money but also sums aggregating to Rs.1,15,25,000/- out of the bid price of Rs.315.73 lacs till 7.1.1998. In 2003 a writ application was filed by ARCPL for deliver....
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....ted 29.9.2003 was passed so also the order dated 1.3.2006. In paragraph 16 of C.A 92 of 2006 the factum of termination of contract has been pleaded and has been dealt with in the following paragraph. For purposes of convenience paragraphs 16 and 17 are reproduced hereinbelow:- 16. Despite the petitioner x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x the Company dilly-dallied in accepting the same and in or around 26th November, 2003 filed an application in the petitioner's writ application praying for recalling of the said order dated 29th September, 2003 alleging that the contract entered into with the petitioner had been terminated x x x x x x x x x x x x x x. 17. The petitioner states and respectfully submits that despite having threatened to repudiate the contract with the petitioner, the company did not ultimately do so. In this context it is reiterated that upon being called upon by the petitioner to refund the said sum of Rs.1,16,25,000/- together with interest, the company took no step whatsoever in that regard. The constitution of the Expert Committee was invalid as without recalling the order of dismissal the Appellate Authority was not competent to t....