1 S.B. Civil Misc. Application No.56/2009 in S.B. Company Petition No.9/1998 Satyadev Sharma & Ors. vs Gurushikhar Savings & Finance (India) Ltd. Date of Order 23.3.2010 HON'BLE MR. PRAKASH TAITA,J. Mr. N.M Lodha, for the applicant. Mr. HR Soni, for the respondent-directors. Mr. Vikas Balia, for the Official Liquidator. <><><> Heard learned counsel for the applicant Smt. Kanchan Devi in S.B. Misc. Company Application no.56/2009 submitted in S.B. Company Petition No.9/1998. The company petition no.9/1998 was submitted by Satyadev Sharma & Ors against Gurushikhar Savings & Finance (India) Ltd.& Ors on 9.3.1998. After due publication of notice and due consideration this court passed the order on 16.12.2008 for winding up of the company Gurushikhar Savings & Finance (India) Ltd. This court also noticed that in CR no.248/1997 an application was submitted by the SHO of the Sojat City, District Pali in the court of Chief Judicial Magistrate, Pali for attachment of the properties of the company in liquidation under Section 105E of the Cr.P.C, 1973 upon which on 20th Nov., 1997 order of attachment was passed for the properties referred in the order dated 20th Nov., 1997 by the court of Chief Judicial Magistrate, Pali. The applicant's Smt. Kanchan Devi's 2 property is referred at S.No.6 of the order dated 20th Nov. 1997. This court in the winding up order dated 16.12.2008 after taking note of the above proceedings before the Chief Judicial Magistrate, Pali observed that on 19th May, 2007, this court passed order that parties as well as the official liquidator to apprise the court that the High Court has already ordered for investigation in the affairs of the company through official liquidator. At this stage, it will be worthwhile to mention here that on 19.8.2008 an application was submitted under Section 450 of the Companies Act, 1956 for appointment of the provisional liquidator and this court appointed the official liquidator as provisional liquidator with direction that he is authorized to make investigation and take possession of the company's movable and immovable assets, bank accounts etc. It was made clear that details of the property will be supplied obviously to the provisional liquidator by the petitioners. The provisional liquidator was directed to make inventory of the properties and provisional liquidator was further directed to submit further progress report from time to time. Be it as it may be, the fact is not in dispute that in criminal case referred above by order dated 20th Nov., 2007, the properties referred in that order was attached. After passing of the order by this court dated 16.12.2008 for winding up of the company in liquidation, the official liquidator approached the learned District Magistrate, Pali 3 under Section 456 of the Companies Act, 1956, upon which the learned District Magistrate, Pali on 17th June, 2009 passed the impugned order and appointed the Tehsildar, Sojat for handing over the property in question to the official liquidator. The present applicant initially approached the civil court for getting the injunction against the taking possession from her wherein interim order was granted in favour of the present applicant from the trial court on 26th June, 2009, however, it was vacated on next day i.e., on 27th June, 2009. According to the applicant, the injunction order was vacated because the possession was taken in pursuance of the direction of this Hon'ble Court then the applicant has submitted this application claiming that the property is belonging to the applicant and it was never the property of the company in liquidation. The notices were issued to the official liquidator and the company petitioner Satya Dev Sharma and Santosh Sharma submitted reply separately, whereas no reply has been filed by the official liquidator in this company application no.56/2009. The facts stated in this application in brief are that the property situated at Khasra no.4534 measuring 0.95 hectares situated in Patalia Jav, Sojat was in Khatedari of one Sh. Shanker Lal S/o Punaram Ji Prajapat. This land was divided in plots and plot measuring 25'x50' was purchased jointly by Gopal S/o Kripa Shanker and Kamal Kishore S/o 4 Bhanwarlal by caste Joshi, resident of Sojat city, vide registered sale deed dated 13.12.1993 for a sum of Rs.25,000/-. The above said Gopal Sharma sold his right in the property in favour of Kamal Kishore vide registered sale deed dated 14.9.1998 for a sum of Rs.50,000/-. The applicant has submitted copies of the above two sale deeds dated 13.12.1993 and 14.9.1998 as Annex.A/1 and A/2. In view of the above two sale deeds, Kamal Kishore became the sole owner of the property in dispute. Kamal Kishore then sold the property in question to the applicant Smt. Kanchan Devi for a consideration of Rs.3,05,000/- by a registered sale deed dated 31.12.1998, copy of which has been placed as Annex.A/3, whereas the company in liquidation was incorporated and came into existence in the year 1994. It is stated that in the company in liquidation there were seven directors namely, Satyadev Sharma, Jagdish Prasad Lambani, Om Prakash Lohar, Shri Gopal Sharma, Shankerlal Sankhla, Prem Prakash and Smt. Santosh Sharma. According to the applicant, the property in question never became property of the company in liquidation which is apparent from the channel of documents, copies of which have been placed on record by the applicant. Learned counsel for the Official Liquidator states that so far as these registered sale deeds are concerned, the official liquidator cannot dispute these registered sale deeds. 5 However, the possession of the property was taken because it was attached by the competent court of law i.e, by the order of the Chief Judicial Magistrate, Pali dated 20th Nov., 1997 wherein there is a reference of the property in question and since the official liquidator was under obligation to take possession of all the properties of the company in liquidation, therefore, the official liquidator approached the District Magistrate, Pali and obtained the order for taking possession of the property in question. It is submitted that official liquidator has no reason to believe that the property was not belonging to the company and the applicant might have purchased the property in the sequence as stated in the application. The two directors who preferred the company petition no.9/98 Satyadev Sharma and Santosh Sharma stated that company was incorporated in the year 1994 and the property in question was purchased by firstly Gopal Sharma and Kamal Kishore vide registered sale deed dated 13.12.1993. Gopal Sharma (Gopal Jadada) became director in the company but because of that reason the property of said Sh. Gopal Sharma could not have become the property of the company. In view of the above facts, it is clear that there is no material on record on the basis of which it can be gathered that the property in question became property of the company at any point of time. So far as sale of the 6 property in question i.e., plot measuring 25'x50' out of the land of Khasra no.4534 is concerned, that plot was dealt with by the persons referred above by registered sale deed since 1993 and ultimately it was purchased by the applicant, therefore, the property in question is required to be released from the possession of the official liquidator. At this juncture, it will be appropriate to mention here that the property in question was attached by the order of the Chief Judicial Magistrate under Section 105E of the Cr.P.C., 1973. The court seized with the matter under Section 105E of the Cr.P.C. is required to pass final order as no court proceedings can come to an end without there being any final order in accordance with law. At this place, learned counsel for all the parties drew the attention of the court towards sub-section (2) of Section 105E, which provides that any order made under sub-section (1) shall have no effect unless the said order is confirmed by an order of the said Court, within a period of 30 days of its being made. According to learned counsel for the parties no order under sub-section (2) of Section 105E of the Cr.P.C. was ever passed by the court where the proceedings under Section 105E of the Cr.P.C. was pending. In view of the above the above facts, the applicant now may submit the copy of this order before the learned Chief Judicial Magistrate, Pali [or if the case has been transferred to other court then in tranferee court] in the proceedings under 7 Section 105E of the Cr.P.C. for obtaining the appropriate order. However, it is made clear that since the possession of the property has been already taken over by the official liquidator, which is not in dispute, therefore, official liquidator is directed to hand over the possession of the property in dispute to the applicant Smt. Kanchan Devi without any further delay. The application is allowed accordingly. [PRAKASH TATIA], J. cpgoyal/-