1 mgj IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Company Application No.870 of 2009 in Company Petition No. 505 of 2006 Board of Industrial and Financial Reconstruction ..Petitioner vs. Coromandal Garments Ltd. ..Respondent and Kotak Mahindra Bank Ltd. ...Applicant/ Intervener. Mr.Kishor Jain with Mr.Dhiraj Kumar Totala and Mr.Devyash Chaurasia i/b M.K.Ambalal and Co. for applicant. Mr.Tripathi i/b T.R.Tripathi and Co. for respondent. CORAM: S.J.KATHAWALLA J. 27 th August, 2009 P.C. 1 This application is filed by the applicant Kotak Mahindra Bank Limited, a Secured Creditor of Coromandal Garments Limited (the respondent). The applicant has placed on record the following relevant facts 2 pertaining to the above company petition and for seeking appropriate order for winding up of the respondent in view of the recommendation given/ final opinion drawn by BIFR on 22 nd January 2007. i) On 2 nd June, 1988 BIFR has declared the respondent as a sick company and the Bank of Baroda was appointed as an operating agent. ii) On 16 th May, 2000, the rehabilitation proposal submitted by the respondent was found not feasible. iii) On 26 th May, 2000 a fresh proposal was submitted by the respondent. iv) A show cause notice dated 22 nd January, 2002 was issued by the BIFR to the respondent to show cause why it should not be wound up. v) On 9 th April, 2002 BIFR confirmed that it was in public interest to wind up the respondent. 3 vi) On 7 th May 2002 the Board communicated its decision to this Court and on 31 st October, 2002 an appeal filed by the respondent against the winding up recommendation was also dismissed by AAIFR. vii) Thereafter on 24 th February 2003 the Madras High Court, at the instance of the respondent set aside the recommendations and remanded the matter to BIFR for fresh consideration. viii) On 29 th June, 2006, this Court passed an order admitting the winding up petition against the respondent and appointed a provisional liquidator. ix) On 22 nd January, 2007 BIFR again recommended the winding up of the respondent , intimation of which was received by this Court on 5 th July, 2007. x) An appeal was preferred therefrom by the respondent which was withdrawn by the company on25th September, 2007. 4 xi)On 16 th October, 2008 an application being application (lodging) No.951 of 2008 was filed before this Court by the respondent seeking setting aside of the order passed by this Court on 29 th June, 2006 on the ground, that at the time when the said order was passed, the appeal of the respondent was pending before the AAIFR, which application was allowed. However, it appears that it was not pointed out to the Court that BIFR had again recommended on 22 nd July 2007 that the respondent should be wound up and that the appeal preferred therefrom by the company was also withdrawn by the company on 25 th September, 2007. If this would have been pointed out to this Court, this Court would surely have again passed a fresh order admitting the petition and appointing the provisional liquidator of the respondent. 5 2 The applicants have, therefore, submitted that appropriate orders be passed against the respondent. 3 The learned Advocate for the respondent states that all the required/necessary facts were set out in the affidavit in support of the Application pursuant to which the order dated 29 th June, 2006 was set aside by an order dated 16 th October 2008. In my view, the duty of an Advocate does not end with setting out of facts in Affidavits. The Advocates appearing before the Court are duty bound to draw the attention of the Court to facts which are relevant for the purpose of deciding an issue by the Court which may have been set out in the affidavit/s of their clients. 4 In view of the aforesaid and in view of the fact that the BIFR has on 22 nd January 2007 again forwarded its recommendation to wind up the respondent 6 company. I pass the following order: i) The said reference / information / recommendation of the BIFR dated 22 nd January, 2007 itself is treated as a petition for winding up. The same is accepted and stands admitted, returnable on 10 th November, 2009. ii) The Official Liquidator, High Court, Bombay is hereby appointed as a provisional liquidator of the company to take charge of the goods, books, assets and business of the company and to exercise all necessary powers under the Companies Act, 1956. iii) The Official Liquidator shall advertise the petition in Free Press Journal , Maharashtra Times and Maharashtra Government Gazette from the common fund. iv) The company waives notice under Rule 28 of the Companies( Court) Rules, 1959. 5 The learned Advocate for the respondent is seeking certain directions 7 against the Liquidator. The respondent is directed to make necessary representation to the Official Liquidator who will after considering the same submit a report to this Court seeking necessary directions. The company application accordingly stands disposed of with no order as to costs. (S.J.KATHAWALLA J.)