1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION COMPANY APPLICATION NO.296 OF 2000 Binani Zinc Limited .. Petitioners Versus Alpic Finance Ltd. .. Applicants and The Official Liquidator .. Respondent And Industral Development Bank of India (IDBI) .. Applicant Mr.A.C.Zaveri i/b. B.Amin and Company for Ex-Director of Alpic Finance Mr.L.V.Boomer i/b. Shaunak Satpute for applicant Mr.S.Ramakantha, Dy.O.L. present. CORAM : S.C.DHARMADHIKARI, J. DATE : 10th June 2008 P.C. . By this company application, the intervenor, I.D.B.I. has prayed, firstly for leave under section 446 of the Companies Act and, thereafter, to direct the liquidator not to sell 2 and/or transfer or part with possession and/or hand over properties/assets of the company in liquidation viz., Bharat Pipes and Fittings Ltd. more particularly described in prayer clauses (c), (d) and (e). Further, a direction is sought that the Liquidator to pay to the intervenor arrears of lease rentals more specifically set out in prayer clause (f) of the company application. There are other reliefs sought but it is not necessary to refer to them. 2. In the affidavit in support it is stated that the intervenor I.D.B.I. is a statutory Corporation. After referring to the claim of I.D.B.I. arising out of financial assistance granted to the company in liquidation, it is stated that the properties mentioned in the above prayer clause so also in para 5 of the Affidavit in support are the securities of I.D.B.I. Thereafter, it is stated that the loan/financial assistance was recalled because there was default 3 on the part of the company in liquidation in payment of sums. It is not necessary to refer to these proceedings in detail inasmuch as the above reliefs are based on the contract/financial assistance/loan and whether the assets are security for due repayment thereof is a matter which on the own showing of parties has been the subject matter of the proceedings before D.R.T. 3. Learned Advocate appearing for the applicant does not dispute that the D.R.T. has passed final orders on the original application instituted by the Intervenor and the recovery proceedings are pending. The liquidator has forwarded a report to this Court and in the report has, apart from disclosing other details, stated that O.A. No.3572 of 2000 was decreed and recovery certificate issued. In recovery proceedings No.50 of 2002 assets of the company in liquidation were valued and I.D.B.I. was allowed to file a sale proclamation. Proceedings 4 pursuant to the sale proclamation were subject matter of report of O.L. and this Court on 27th November 2003 directed O.L. to verify whether any raw materials were lying in factory premises and file further report. The further report is that there are no raw materials lying in the said premises. The recovery officer has conducted sale of immovable properties and the successful Bidder’s name has also been disclosed by the O.L. The recovery officer instructed the representative of O.L. to hand over possession of assets to the successful bidder. In such circumstances, the further report was made which was granted on 22nd January 2004 by this Court. The O.L. has stated that the recovery officer has sold properties mentioned in para 15 of this report on 21st November 2007. He has also stated that some machineries were claimed by one M/s.Alpic Finance 5 Ltd. and, therefore, a meeting was held to resolve the issue. The ex-directors of respective companies in liquidation and representatives were present. 4. Now, the stand taken by the liquidator is that he is requesting D.R.T. to keep the sale proceeds separately till the issue of title to machineries which are claimed by I.D.B.I., is decided. In that behalf the O.L. states that proceedings are pending before the D.R.T. and he will file his response/reply therein. 5. It is in the above circumstances and perusing entire records and earlier orders that I brought it to the notice of the Advocate for intervenors that this Court cannot pass any orders and directions on the subject company application. If at all the intervenor decides to initiate proceedings with regard to the machinery or claim the sale proceeds which are lying with 6 the recovery officer, D.R.T., the remedy is not to pursue this application but to take such steps as are permissible in law in that behalf. However, the learned Advocate despite the matter being adjourned reported no instructions from I.D.B.I. In my view, perusal of the materials would disclose that in the light of the pending proceedings before D.R.T. and other contentious issues involved, this application is not the appropriate remedy for the intervenor applicant. Once this opinion is expressed, then, it is not fair to go into rival contentions with regard to merits of the matter. No opinion is expressed thereon and each of them is kept open. Application is disposed of in the above terms. No costs. (S.C.Dharmadhikari, J)