TaxTMI 
TaxTMI 
2022 (8) TMI 374
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....O/8/2022, ACO/9/2022 THE BARANAGORE JUTE FACTORY PLC (IN LIQN). AND NAMOKAR VINIMAY PVT. LTD. -VS- OFFICIAL LIQUIDATOR AND ANR. APOT/74/2021 IN CP/2/1987 IA NO: ACO/2/2021, ACO/3/2021, ACO/4/2021, ACO/5/2021, ACO/6/2021, ACO/7/2021, ACO/8/2021, ACO/9/2021, ACO/10/2021, ACO/11/2022, ACO/13/2022, ACO/14/2022, ACO/15/2022 IN CP/2/1987 APOT/80/2021 IN CP/2/1987 Present: Mr. Abhrajit Mitra, Sr. Advocate Mr. Sarvapriya Mukherjee, Advocate Mr. Yashovardhan Kochar, Advocate Mr. Anirudha Agarwalla, Advocate ... for Baranagore Jute Factory, PLC (appellant in APO/48/2020) Mr. K. Thaker, Advocate Mr. Jaydeb Ghorai, Advocate Mr. Suman Chatterjee, Advocate Mr. Diptesh Ghorai, Advocate ... for appellant in APO 195/2019 Mr. Anirban Ray, Advocate, Mr. Soumabha Ghose, Advocate, Mr. Prasanta Naskar, Advocate. Mr. Yash Singhi, Advocate ... for Namokar Vinimay Pvt. Ltd. (appellant in APO 143 of 2020) Mr. Jishnu Chowdhury, Advocate Mr. Balaji Chakraborty, Advocate ... for Baranagore Jute Mills Employees' Union (INTUC) (applicant in ACO/15/2022 in APOT/74/2021 and (appellant in APOT/74/2021 Mr. Surajit Nath Mitra, Sr. Advocate Mr. Sankarsan Sarkar, Advocate Mr. Subhrangsu Ganguly, Advocate ... fo....
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....en heard finally after commencement of physical hearing. Arguments at length have been advanced by learned counsel for the parties. 3. This case has a chequered history, therefore, before entering into the merits of the matter it would be appropriate to ascertain the present status of the company petition. 4. The initial fact of incorporation of Baranagore Jute Factory PLC is noted in the judgment dated 11th November, 2009 of the Hon'ble Supreme Court of Judicature, Court of Appeal (Civil Division) in appeal from the High Court of Chancery Division in Appeal No. A3/2009/0423 in the matter of Chaitan Chowdhury and Others vs. Damodar Prasad Bhattar and Others reported in 2010 (2) All ER 103 as under: "2. The Company was incorporated in England on 22 July 1872 under the Companies Act 1862 for the purpose of carrying on the business of jute manufacturers at Barnagore, near Calcutta, in what is now the Republic of India. That remains the sole business of the Company. It is common ground that the Company has, now, no connection with England; save that it was incorporated here, maintains its registered office in London and is required to make annual returns to Companies House." 5. C.....
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....r revival as annexed to the petition being Annexure 'B' is directed to take steps for reopening of the Jute Mill and to run the same in terms of the scheme as attached to the petition being Annexure 'B'. It is made clear that such management by Ad-hoc Court Committee making by way of interim arrangement for the benefit of all concern the applications are not being decided on its merit. This order without prejudice to the rights and contentions of the Parties. Official Liquidator will forthwith take possession and remain in possession of the Company and will complete the inventory which is yet to be completed as also of the finished goods and will take the assistance of the valuer from the panel on valuers of the High Court and the cost of the Jute Mill to paid by Mr. Mitra's client in the first instance." 9. The order of the learned Company Judge dated 15th September, 1988 was the subject matter of challenge in the Company Appeal wherein the Hon'ble Division Bench by order dated 22nd September, 1988 had stayed the winding up proceedings for six months for the time being, by directing as under:- "(cc) The winding up proceedings shall remain stayed for six months for the time bein....
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....of events and various orders from 1987 till 2004 by quoting from the judgment In Re: Radheshyam Ajitsaria reported in 2006 (11) SCC 771 as under: "BACKGROUND FACTS: 4. Baranagore Jute Mills PLC (for short `the Company') was under the management of Jardine Henderson Limited. On the failure of the jute factory to pay dues of several of its creditors, various winding-up petitions were filed in the High Court under the provisions of the Companies Act, 1956. By an order dated 28.10.1987, the Company Judge directed winding- up of the Company. The Court appointed the Official Liquidator with a direction to take possession of the assets of the said Company. An application was made by one - Shri Raj Kumar Nemani praying for stay of the winding-up proceedings of the Company and for revival of the Company as per a Scheme submitted and for appointment of an ad hoc Committee of Management to run the affairs of the said Company. The six Unions agreed to the Scheme as it was to the benefit of the workers. The learned Company Judge stayed the winding up by order dated 15.9.1988 and appointed an ad-hoc Committee of Management to re-open the mills, but however maintained the assets of the Co....
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....is disposed of accordingly. No order as to costs." 7. The learned Company Judge approved the Scheme on 16.6.1989. The Scheme, inter alia, provides for payment to all unsecured creditors, workers, secured creditors, statutory dues etc. On 02.05.1990, appellant No. 1 resigned from the Management of the Company. 8. The learned Company Judge, while considering several applications made by unsecured creditors complaining that they were not paid by the Committee of Management, made an order dated 16.12.1991 cancelling the Scheme, observing that the Scheme had totally failed. 9. On an appeal preferred by the Committee of Management against the order dated 16.12.1991, the Division Bench of the High Court made an interim order dated 18.12.1981, reiterated on 24.3.1992 directing payment of 1% of the respective claims to all creditors on or before 7.1.1992. The Bench also stayed the order passed by the learned Company Judge dated 16.12.1991 ordering cancellation of the Scheme. A special leave petition was filed against the order dated 24.03.1992 by one of the creditors. This Court directed the appeal pending before the Division Bench of the High Court to be disposed of expeditiously, wh....
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....into scale in deciding whether the order of the learned single Judge setting aside the scheme should be interfered with in appeal or not.." 6. However, the order of the Division Bench staying the operation of the order dated 16th December 1991 of the learned single Judge will continue unless the Division Bench itself considers it appropriate to modify the same in the light of any subsequent event. The Division Bench shall also be at liberty to consider any applications for the modification of the scheme. 7. With these observations and directions the special leave petition is disposed of." 10. By subsequent orders, this Court directed the Committee of Management to deposit Rs. 40 lacs in two instalments which was to be deposited in the Registry of this Court. The said amount was kept in term deposits. On 11.03.1994, this Court set aside the order of the Division Bench of the Calcutta High Court passed on 24.03.1992 reducing rate of payment from 2% to 1%. This Court also directed the Committee of Management to deposit from the month of April, 1994 onwards a sum of Rs. 8 lacs per month with the Registry of Calcutta High Court. Further directions were also issued while remanding ....
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.... funds of the Company towards its alleged claims as unsecured creditor. Sri Santosh Hegde says this is impermissible. It is open to the petitioners to move the Company Judge in this regard. The contention of the Committee of Management on this point is also left open. 6. The interlocutory applications are disposed of accordingly." 11. On 13.12.1994, the learned Company Judge appointed a new Committee of Management composed of the Jain-Jalan group, while issuing necessary directions for deposit of Rs. 64 lacs by the Jain-Jalan group with the Registrar of the High Court. The Company Judge also directed certain lump sum payments to six substantial creditors, except Nemani Group on the basis of the list approved in the Court's Scheme prior to cut- off dates in October, 1987 before issuing advertisement inviting claims from creditors, while directing payments to be made to certain parties. 12. In appeal against the said order dated 13.12.1994, the Division Bench allowed the Jain-Jalan group to continue and carry on with the process of the Scheme, but set aside the direction for preferential payment to six named unsecured creditors. 13. The learned Company Judge by order date....
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....he Registrar, Original Side. 14. One Shri Chetan Chowdhury claiming himself to be one of the Directors of the Company filed an appeal against the order dated 08.03.2001. The Division Bench, while granting liberty to the appellants to withdraw the amount deposited against its name/claim by furnishing a Bank Guarantee also recorded that it is not clear as to why Chetan Chowdhury and his group could be in the possession of the Company and listed the appeal for further directions. 15. On 14.05.2001, the appellants - Ajitsaria's group received payments from the Registrar of the High Court upon furnishing the requisite Bank Guarantee. Learned single Judge of the High Court passed an order on 19.12.2002, inter alia, holding that the possession of the Company by the alleged Board of Directors was wrongful, while directing the Official Liquidator to take possession of the Company (in liquidation). Several appeals were preferred from the order. The Division Bench, while staying the operation of the order dated 19.12.2002, directed the Joint Special Officers to take possession. 16. The Division Bench in appeals filed against the order dated 08.03.2001 made an order dated 3.3.2004 di....
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.... (a) By order of this Court the said funds are meant for disbursement only for unsecured creditors. Separate arrangements have been made under the scheme for payment of other dues including workers' dues. The said scheme sanctioned in 1989 is still in operation and the present Committee of Management is operating under the same scheme. (b) Since 1994 i.e. after the petitioner Group was superseded by the Jain-Jalan Group, no demands of any nature relating to any outstanding payments were ever raised by the workers. (c) In any event, it has been clearly recorded in the order dated 18-11- 2004 whereby the said Chetan Choudhary Group has been allowed to continue in management, that the said Chetan Choudhary Group is being allowed to be continued on the same terms and conditions as under the original sanctioned scheme, thus making them liable to make payments of all dues, past or present. (d) Therefore, the Company being a running concern, the alleged dues of the workers cannot be claimed against any specific member of the Management Committee. The dues, if any, are against the Company and not against any individual members of the Committee of Management. There is no questio....
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....appellant has fairly stated that there is no order of the Company Court or the Hon'ble Division Bench staying the winding up proceedings permanently. 17. In the above judgment, Hon'ble Supreme Court had again reiterated that: 49. In our view, the provisions as contained under Section 529-A of the Companies Act, 1956 are not applicable in the facts and circumstances of the case as the order of winding up has been stayed and the Company is being run under the scheme as a going concern. "50. One Committee of Management is being replaced by another Committee of Management on the same terms and conditions with an object to implement the same scheme. Thus the dues of the creditors including the workers and other statutory dues are to be paid by the Committee of Management. Even at present the Company is being run by a Committee of Management and is now supported by the workers as would appear from the order dated 18-11-2004." 18. In paragraph 59 of the above judgment, it was very clearly found by the Hon'ble Supreme Court that the Company was not wound up but allowed to continue as a going concern by holding as under: "59. It is important to note that by orders of the Court, the....
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....04. The BIFR on 7th of June, 2006 had recorded a finding that the company had become a sick industrial company as on March, 2003 and accordingly, declared it to be so and the BIFR appointed IDBI as the Operating Agency with the direction to prepare a revival scheme for it, if feasible. The IDBI had submitted the revival scheme by letter dated 30th of June, 2008 and the BIFR had prepared a Draft Rehabilitation Scheme (DRS) for revival of the company which was circulated vide order dated 2nd of December, 2008 and this scheme was sanctioned by the BIFR with some modification on 4th of November, 2009. It is worth noting that Section 22 of SICA, 1985 relating to suspension of legal proceedings, contracts, etc. provides that pending any enquiry under Section 16 or scheme referred to under Section 17, no proceedings for winding up of the industrial company or for execution, distress, etc, shall lie or be proceeded with further except with the consent of the Board or by the Appellate Authority. 21. At this stage, it would not be out of place to note that in Madura Coats Limited vs. Modi Rubber Limited and Another reported in (2016) 7 SCC 603 the Hon'ble Supreme Court, in a case wherein a ....
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....50,00,00,000/-. On 09th November, 2012, a sum of Rs. 95,00,00,000/- was deposited by the National Highway Authority of India with the Registrar of the High Court at Calcutta. Thus, it was found that the respondent company had received or was entitled to receive a total sum of Rs. 170 crores on account of compensation for acquisition of land. It was further found that on the basis of the precise details of its liabilities even after meeting of its statutory and contractual applications, the company would be left with surplus of nearly Rs. 50,00,00,000/- and would not be a sick company anymore. The observations of the Hon'ble Supreme Court in the matter of Yash Deep Trexim (P) Ltd. (supra) in this regard are as under: "14. Having noted the broad features of the grievances raised in each of these appeals we may now take note of certain connected facts on the basis of which we will be required to decide the necessity and expediency to adjudicate the core question arising in these appeals and the other issues that have been sought to be agitated before us. It has already been stated in the earlier part of this order that the respondent Company is the owner of vast tracts of immovable ....
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....h the Registrar of the Calcutta High Court is not in dispute. That the respondent Company would be left with a surplus of about Rs 50 crores after meeting all its losses and liabilities is a common ground amongst all the contesting parties. The rehabilitation scheme framed by the Board by its order dated 4-10-1999 is yet to be implemented. In the aforesaid situation keeping in view the object and scheme of the Act and the virtual consensus of the contesting parties with regard to the present financial health of the respondent Company it is clear that the Company can no longer fall within the ambit of the expression "sick industrial company" as defined in Section 3(1)(o) of the Act. Further applicability of SICA to the respondent Company, therefore, does not arise. 20. I f the respondent Company no longer falls within the ambit of a "sick industrial company" as defined by Section 3(1)(o) of the Act and the Act has ceased to apply to the Company and the rehabilitation package worked out by the Board has not yet been implemented, the question(s) arising in the present appeals have surely become academic and redundant. If that be so, we do not see why we should answer the said questi....
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.... challenge before the Hon'ble Division Bench in ACO 38 of 2016 and connected matters. The Hon'ble Division Bench while passing the order dated 14.08.2014 had expressed doubt about permanent stay and observed as under: "Such contentions of Mr. Sengupta, was refuted by the learned Counsels appearing for different groups of interveners, i.e, the shareholder, the workers union and the unsecured creditors, as according to them the issue as to whether the winding up proceeding has been permanently stayed or not is still an alive issue which is required to be resolved by the Company Court. Contradictory stand, taken by the parties against each other on the issue of permanent stay of the winding up proceeding, leads us to investigate deep into the matter to find out the present stage of the said winding up proceeding. In this regard, it is worth mentioning here that apart from mentioning that the Company is a going concern and the winding up proceeding against the said company has been permanently stayed under Section 466 of the Companies Act, 1956, by the Hon'ble Supreme Court in the said judgment dated 24th May, 2006 passed in the Civil Appeals No.4101-4103 of 2004, the order passed by....
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....ent of the company cannot be controlled by the Board of Directors of the company when the company is in liquidation. Thus we hold that the appellants' right to withdraw the deposited money depends upon the fate of such research. However, such research cannot be completed without affidavits being exchanged between the parties. We do not want to do the exercise as the Company Court has not yet decided these applications finally, and if we do this exercise at this stage, the aggrieved party will lose a forum of appeal for challenging our order on this issue. Considering the amount of deposit which the appellants want to withdraw, and the company's indebtness to its various creditors and the quantum of its liability, coupled with the facts that even the workers have not been paid their dues, we do not feel it safe to allow a particular group of shareholders, who are described as interloper by the creditors, to withdraw the money deposited with the Registrar, Original Side of this Court without deciding the said issue finally, particularly when we find that the appellant/applicant themselves have filed an application being C.A.No. 957 of 2010 praying for permanent stay of the company ....
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.... into an entity custodia legis. (iv) The Company/BJF continues to be monitored by the Court at various stages through its CoMs, Joint Special Officers, the Official Liquidator. (v) The sudden infusion of the compensation money by NHAI has turned the balance-sheet of the Company from red to black. The Company's performance per se has not been credited with the paper turn-around, although the Company continues to claim the status of a going concern which will be left with a cash surplus after pending debts/obligations are met from out of the funds pumped in by NHAI. (vi) Sum of Rs. 8 lacs only directed to be periodically deposited by the Company to the Registry of this Court towards satisfaction of part of the Company's dues, has remained largely unpaid till date. (vii) About cut-off date the Company Judge found the argument to be more deserving that the status of the creditors and/or other claimants to the dues has acquired a representative character. (viii) The creditors, workers, bankers, financial institutions, then and now can be considered to be in queue for their dues up to the stage of their proximate transactions with the Company at the time the Company was referre....
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....und that the court would have to consider whether the exercise of the discretionary jurisdiction of the company court under Section 466 has to be interfered with in appeal. At the outset, it must be noted that this Court in appeal is not called upon to determine in the first instance as to whether a case was made out for the exercise of the discretion under Section 466 but whether the judgment of the learned Single Judge would warrant interference in appeal, based on well settled principle of law that the court in the exercise of its jurisdiction under Clause 15 of the Letters Patent would not interfere with an order of the learned Single Judge even if the learned Single Judge has taken a possible view. The judgment of the learned Single Judge is, in our view, not merely a possible view to take but the only correct view based on the facts and circumstances of the case." 35. The moot question in these appeals is if there is a permanent stay of winding up proceedings. Rival submissions have been advanced by the learned counsel for the parties on the observation of the Hon'ble Supreme Court about permanent stay in the matter of Radheshyam Ajitsaria & Anr. (supra). Submission of Mr. M....
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.... before the Hon'ble Supreme Court in SLP (C) No. 2814-2815 of 2015. Nothing has been pointed out to show that the above observation of the Division Bench of this Court was interfered with or set aside by the Hon'ble Supreme Court in the appeal. Hence, the issue relating to permanent stay is now required to be dealt with by this Court by examining the factual and legal position in this regard. 37. Section 466 of the Act deals with power of tribunal to stay winding up and provides as under: "466. Power of Court to stay winding up.-(1) The Court may at any time after making a winding up order, on the application either of the Official Liquidator or of any creditor or contributory, and on proof to the satisfaction of the Court that all proceedings in relation to the winding up ought to be stayed, make an order staying the proceedings, either altogether or for a limited time, on such terms and conditions as the Court thinks fit. (2) On any application under this section, the Court may, before making an order, require the Official Liquidator to furnish to the Court a report with respect to any facts or matters which are in his opinion relevant to the application. (3) A copy of eve....
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....Section 466(1) confers a discretion on the court and not a mandate. The discretion has to be exercised on satisfaction that stay of the proceedings in relation to winding up ought to be granted. The legislature has carefully used the expressions "on proof to the satisfaction" and "ought to be stayed". Before the court grants a stay, the statutory requirement is that there must be proof which is brought before the court on the basis of which it is satisfied that the proceedings ought to be stayed. 12. The language of Section 466 of the Companies Act, 1956 has been interpreted, as we shall indicate, by courts in India having due regard to the corresponding principles under the provisions of the English Companies Act. An early decision on the subject in the UK was a judgment of Lord Esher, M.R. speaking for the Court of Appeal in Re Flatau 2. The judgment of the Court of Appeal followed an earlier decision in re Hester 3 which had laid down the rules for a rescission of a receiving order in bankruptcy. In that context, Lord Esher had held as follows: 18-A. In the Court of Appeal, Lord Esher, M.R., stated (p.639): Although the consent of all the creditors has been obtained, the Cou....
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....fied," "just and beneficial," "satisfaction of the court" and "ought to be stayed" seem to me to indicate that the applicant for a stay must make out a case that carries conviction. (emphasis supplied) 13. In an early decision of the Calcutta High court in the matter of East India Cotton Mills Ltd., Justice S.R. Das (as the learned Judge then was adverted to the position in English law as summarised in Halsburry's Law of England, thus : In the exercise of its jurisdiction to stay, the Court, so far as possible, acts upon the principles applicable in exercising jurisdiction to rescind a receiving order or annul an adjudication in bankruptcy against an individual. The Court refuses, therefore, to act upon the mere assent of the creditors in the matter, and considers not only whether what is proposed is for the benefit of the creditors, but also whether the stay will be conducive or detrimental to commercial morality and to the interests of the public at large. In particular, the Court will have regard to the following facts; That directors have not complied with their statutory duties as to giving information to the official receiver or furnishing a statement of the affairs;....
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....cts of a particular case, (3) mere consent of all the creditors for stay of winding up is not enough, (4) that offer to pay in full or make satisfactory provisions for the payment of the creditors in not enough, (5) court will consider the interest of commercial morality and not merely the wishes of the creditors and contributories, (6) Court will refuse an order if there is evidence of misfeasance or of irregularity demanding investigation, (7) a firm and accepted proposal for satisfying all the creditors must be before the Court with material particulars, (8) the jurisdiction for stay can be used only to allow in proper circumstances a resumption of the business of the company, (9) the Court is to consider whether the proposal for revival of the company is for benefit of the creditor but also whether the stay will be conducive or detrimental to the commercial morality and to the interest of the public at large, (10) before making any order Court must see whether the Ex-directors have complied with their statutory duties as to giving information to the Official Liquidator by furnishing the statement of affairs, (11) and any other relevant fact for grantin....
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....ing up the Company. It is now well-settled that a winding-up order once made can be revoked or recalled but till it is revoked or recalled it continues to subsist. That is the situation in this case. If the winding-up order is subsisting the court which made that order or the court which kept it in abeyance will have jurisdiction to give necessary directions to the Provisional Liquidator to take recourse to Section 446(2)." 46. The Division Bench of this Court in the case of Asset Reconstruction Company (India) Ltd. vs. Bengal Shelter Housing Development Limited, 2017(3) CHN (CAL) 192 has held that Company petitions even when dismissed on merits are traditionally not recorded or disposed of but permanently stayed. "11. A note by way of a post-script: Company petitions, even when dismissed on merits are traditionally not recorded as dismissed or disposed of; but are permanently stayed. Dismissal is recorded only when the petition is not maintainable or is barred by law. The effect may not be any different from recording a disposal, but there is a history of more than a century that goes behind such recording, which must be respected." 47. Calcutta High Court in the matter of In ....
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....ove or as required under the Act or Rules after passing of the winding up order, for winding up of the company have been taken in the present case. Thus, so far as the winding up proceedings are concerned, they are at the same stage in which they were on the date of passing of the winding up order, about 35 years back as on 28th of October, 1987. 50. The fact that Official Liquidator is not in possession of the assets of the company in liquidation, is clearly mentioned in the affidavit of the Official Liquidator dated 26th of February, 2015 filed before the Hon'ble Supreme Court, relevant part of which is quoted as under: "...4. That in terms of the orders passed by the Hon'ble High Court at Calcutta from time to time on 26.12.1994 the Official Liquidator handed over all the assets and properties of the company to the then Committee of Management appointed by the Hon'ble High Court at Calcutta. A godown space which was given on rent to the Central Warehousing Corporation was kept in possession under the office of the Official Liquidator and the Official Liquidator continued to receive the rent from the Central Warehousing Corporation. A copy of the minutes of handing over the pr....
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....h this office on account of the company was also handed over to the said company by way of a cheque in favour of the company on 8th May, 2012. 11. I state that presently the Official Liquidator is in no way concerned with the Baranagar Jute Factory PLC, which is now running and operating independently as a going concern. This office has no other Books, Accounts and documents which is left to be handed over to the Respondent No. 1 company." 51. In the present case, it is also worth noting that the Hon'ble Supreme Court in the order dated 30th of November, 1988 had opined that the scheme supported by the workers and unsecured creditors of Raj Kumar Nemani, be accepted and a detailed scheme on that basis be formulated and be implemented as soon as possible, therefore, the Company Judge was directed to work out the scheme. The Record further reflects that the Company Judge had approved the scheme dated 16.06.1989. Though the Company Judge by order dated 16.12.1991 had cancelled the scheme observing that the scheme had totally failed but the Division Bench in appeal had passed the interim order dated 18.12.1981 staying the order of the Company Judge dated 16.12.1991. In S.L.P.(....
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....pany Court to sanction arrangements. Sub-section 6 of Section 391 empowers the Company Court to grant stay. In the matter of Meghal Homes (P) Ltd. vs. Shree Niwas Girni K.K. Samiti and Others [(2007) 7 SCC 753] the Hon'ble Supreme Court has considered the scope of Sections 391 and 466 of the Act and has held that there is no difficulty in reconciling the need to satisfy the requirement of both Sections 391 to 394-A and Section 466 of the Companies Act. There is no incongruity in looking aspects of public interest, commercial morality and the bona fide intention to revive a company while considering whether a compromise or arrangement put forward in terms of Section 391 of the Companies Act should be accepted or not. The Judgment in the matter of Meghal Homes (P) Ltd. (supra) has been noted with approval by the Hon'ble Supreme Court in the matter of Arun Kumar Jagatramka vs. Jindal Steel and Power Limited and Another [(2021) 7 SCC 474]. Hon'ble Supreme Court in the matter of M/s. J.K. (Bombay) Private Ltd. vs. M/s. New Kaiser-I-Hind Spinning and Weaving Co. Ltd. [AIR 1970 SC 1041] has held that the scheme of payment to creditors has statutory force and is binding on creditors and sh....
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....perates as an agreement between the parties but has statutory force and is binding not only on Company but even dissenting creditors or members as the case may be. 55. This court cannot lose sight of the settled legal position that winding up should be resorted to as the last resort after exhausting all remedies. In the facts of this case and especially considering the fact that the Company is operating as a going concern, it is not in the interest of justice to direct winding up of the company. It is worth noting that a large sum of Rs. 170 crores is lying in deposit with the Registrar of this Court and possibility of some of the contesting parties having an eye on it cannot be ruled out. Hence, every effort is required to be made to ensure the amount is utilized for rightful purposes. 56. Thus, on the basis of the aforesaid analysis and after perusal of the record, we find that: a. The winding up order passed by the Company Judge on 28th of October, 1987 was stayed by the Division Bench by order dated 22nd of September, 1988 for a period of 6 months. Thereafter, there is no material available on record indicating that the order of stay was extended by the Division Bench any f....
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.... amount from NHAI as has already been observed by the Hon'ble Supreme Court in the matter of Yash Deep Trexim Private Limited (supra). It has also been noted by the Hon'ble Supreme Court in the case of Yash Deep Trexim Private Limited (supra) that even after meeting its statutory and contractual obligations and liabilities the company would be left with a surplus of nearly 50 crores. 57. The aforesaid fact situation clearly indicates that for all practical purposes there is permanent stay of the winding up proceedings and only a formal order of permanent stay is required to be passed by Company Judge after obtaining audit report and recording a finding relating to satisfaction of settled conditions for such order. 58. The Company Judge is right in observing that the Company/BJF continues to be monitored by the Court at various stages through its CoMs, Joint Officers etc. In the facts of the case, we also find no error in the conclusion of the learned Company Judge about the transformation of BJF into an entity custodia legis. However, we are unable to concur with the conclusion of the learned Company Judge about the cut-off date for creditors, workers, financial institutions and ....
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....months hence. iii. On receipt of the same and after taking into account the amount which is already kept in deposit before the Registrar of this Court as also the observation of the Hon'ble Supreme Court in the judgments noted above as also of this Court in this order about the circumstances relating to permanent stay, the Company Judge will settle the claims upto the cut-off date and pass appropriate order for permanent stay of winding up proceedings in accordance with law. iv. All other claimants, including the PF authorities, having their claims after the cut-off date will be at liberty to approach the competent Forum/take action in accordance with law. v. On passing the order of permanent stay of winding up proceedings, the parties will be at liberty to approach NCLT or any other appropriate forum for settling their dispute relating to right of management and issue of mismanagement, oppression, etc. in accordance with law. vi. This Court has the responsibility to ensure that the amount in deposit with the Registrar of this Court does not go to the wrong hands, therefore, it is directed that on passing the order of permanent stay by the Company Judge, the amount in depos....