COMP/252/2000 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD COMPANY PETITION No. 252 of 2000 For Approval and Signature: HONOURABLE MR.JUSTICE K.A.PUJ ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= BANK OF RAJASTHAN LTD. - Petitioner(s) Versus GTCL MOBILE-COM TECHNOLOGY LTD - Respondent(s) ========================================================= Appearance : MR AMAR N BHATT for Petitioner(s) : 1, MR ASHOK L SHAH for Respondent(s) : 1, MS MEGHA JANI for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE K.A.PUJ Date : 12/03/2008 ORAL JUDGMENT 1. Bank of Rajasthan Ltd., has filed this petition under Sections 433, 434 and 439 of COMP/252/2000 2/8 JUDGMENT the Companies Act, 1956 for winding up of the respondent Company on the ground that the respondent Company has failed to discharge its liability towards the petitioner. Initially notice was issued by this Court on 6.11.2000. The respondent Company was relief undertaking at the relevant time and hence this court has passed an order on 21.11.2002 wherein it is observed that fresh Notification was issued on 30.4.2002 for a period of 12 months under the Bombay Relief Undertaking (Special Provisions) Act, 1958, whereby the status of relief undertaking was granted to the respondent Company. The fresh Notification was placed on record. The respondent Company, thereafter, has filed reference under the Sick Industrial Companies (Special Provisions) Act, 1985 before the Board of Industrial and Financial Reconstruction. The Court, therefore, observed in its order dated 24.9.2004 that the respondent company is before BIFR. The COMP/252/2000 3/8 JUDGMENT Court further passed an order on 21.11.2005 that since the matter is pending for consideration before the BIFR in view of Section 22 of the Act, no proceedings can be continued against the respondent Company. The proceedings were, therefore, adjourned sine die. 2. An affidavit is filed on behalf of the respondent Company on 21.11.2006, wherein it is stated that the respondent Company has filed its reference before the BIFR. The said reference has been registered by the BIFR as Reference Case No.197/2004 on 12.5.2004. It was further stated that the hearing of the said reference was held on 30.5.2006 where the BIFR appointed Dena Bank as the Operating Agency with a direction to prepare a revival scheme for the respondent, if feasible. 3. During the pendency of reference before the COMP/252/2000 4/8 JUDGMENT BIFR as well as during the pendency of present petition before this Court, the BIFR has granted permission to the petitioner to pursue recovery proceedings before DRT. Moreover, the Bank has also taken action against the Company under Section 13(4) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI). It was also found from the proceedings before the BIFR that although the Board had declared the company to be sick and had appointed Dena Bank as the Operating Agency, Dena Bank has refused to act as Operating Agency and has initiated action under SARFAESI Act. Since, Dena Bank vide its letter dated 6.6.2006 had informed that they had sent a notice under Section 13(2) of SARFAESI for recovery of Rs.5264.67 lacs, the Company had prevented the Bank from taking possession of the mortgaged properties under Section 13(4) of SARFAESI Act, Dena Bank had invoked COMP/252/2000 5/8 JUDGMENT provisions under Section 14(1) of the Act. After recording the aforesaid proceeding, the Board had passed an order on 8.2.2007 whereby reference stood abetted in terms of the third proviso to Section 15(1) of SICA. 4. Considering the above state of affairs, this Court has passed an order on 24.12.2007 admitting the petition and directing the petitioner to issue advertisement in two newspapers, namely, 'Indian Express' English daily and 'Divya Bhaskar' Gujarati daily, both Ahmedabad editions fixing the date of final hearing of the petition on 20.2.2008. Publication of advertisement in the Official Gazette was dispensed with. The Court has also made it clear that since the order of admission and advertisement is passed in Company Petition No.252 of 2000, Company Petition No.15 of 2005 was also admitted and it was to be heard alongwith Company Petition No.252 o 2000. The Court has, however, not COMP/252/2000 6/8 JUDGMENT passed any separate order of advertisement in Company Petition No.15 of 2005. 5. Pursuant to the order dated 24.12.2007, the petitioner has issued advertisement as directed by this Court and an affidavit to this effect was filed on 15.2.2008. Alongwith the said affidavit, relevant cuttings of the newspapers containing the advertisement are placed on record. 6. The petition is, therefore, taken up for final hearing. Heard Mr.Amar Bhatt, learned advocate appearing for the petitioner and Mr. Ashok L. Shah, learned advocate appearing for the respondent Company. Looking to the several proceedings before the BIFR and DRT and looking to the fact that the secured creditors have exercised their rights under SARFAESI Act and have taken possession of the assets of the Company in liquidation, the Court is of the view that the respondent COMP/252/2000 7/8 JUDGMENT Company is not in a position to survive and it has lost its financial substratum and failed to discharge its liabilities towards the creditors including the petitioner. The Court has, therefore, no other alternative but to pass a winding up order. Accordingly, the respondent Company is hereby ordered to be wound up. The Official Liquidator attached to this Court is hereby appointed as the Liquidator of the Company and is directed to take possession of the assets of the Company in liquidation. Before taking possession he has to issue necessary intimation to the Company as well as the secured creditors, if any, and if the property is in charge of the secured creditor and possession is denied by any one, the Official Liquidator is directed to file report before this Court forthwith. The Official Liquidator is further directed to issue notices to the Ex-Directors and/or persons responsible for the affairs of the COMP/252/2000 8/8 JUDGMENT Company to file Statement of Affairs before him within stipulated period. 7. Subject to the aforesaid direction and observation, this petition is accordingly disposed off. (K. A. PUJ, J.) kks