ASN 1 app-lod.296-11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL LODGING NO.296 OF 2011 M/s. Texraj Reality Pvt. Ltd. ..Appellant. Vs. BIFR and ors. ..Respondents. Mr. Yatin Oza, Sr. Advocate with Mr. Jayesh Desai, Mr. Shakib Dhorajiwala and Mr. Rajesh Savjani i/by M/s. Singhi & Co. for the Appellant. Mr. S. Kadam for Gujrat Kamgar Panchayat and S.M. Market Union. Mr.V.P. Sawant for Official Liquidator. Mr. V.M. Bhardwaj for Respondent No.3. Mr.N.M.Ganguli for Gujrat Rajya Shramjivi Karmachari Union. CORAM : MOHIT S. SHAH, C. J. AND GIRISH S. GODBOLE, J. DATE : 27 th June, 2011 PC: The challenge in this appeal is to the order dated 26th July, 2010 passed by the learned Company Judge in Company Application No. 1166 of 2007 in Company Petition No.369 of 2003, in so far as the learned Company Judge has made certain observations in Paragraph 11 of the order. M/s. SLM Industries Limited has filed representation before the BIFR which was registered as BIFR Case No.4 of 1991. As the ASN 2 app-lod.296-11.sxw proceeding before the BIFR for revival was not successful, BIFR forwarded its opinion making recommendation of winding up. The same was treated as company petition and the same came to be registered as Company Petition No. 369 of 2003. By order dated 11th June, 2004, the company petition was admitted and ordered to be advertised. The petition was accordingly advertised and the Official Liquidator was appointed as Provisional Liquidator of the company. Consequently, by order dated 6th Sept. 2007, the learned Company Judge directed the Official Liquidator to take the physical possession of the properties. 2 The company took out Company Application No.1166 of 2007 for setting aside the aforesaid orders dated 14th March, 2007 and 6th September, 2007. The learned Company Judge took up the said application for hearing along with the company petition for winding up of the company. After hearing the learned counsel for the applicant company, learned counsel for 341 workers and the Deputy Official Liquidator, the learned Company Judge held that there was no immediate, proximate hope of reviving the manufacturing business or activities of the company as they had already come to an end and the creditors were waiting for 20 years. The learned Company Judge accordingly made the company petition absolute by ordering and directing that the company be wound up and the provisional liquidator is appointed as Official Liquidator in winding up proceedings. The learned Judge has also dismissed the Company Application No.1116 of 2007 of the Company. ASN 3 app-lod.296-11.sxw 3 In the course of passing this order, the learned Company Judge noted that during the pendency of the company petition particularly, after admission of the company petition on 11th June, 2004; there was purported sale by the company of its immovable properties after admission of the petition and after appointment of the Provisional Liquidator. The learned Company Judge therefore held that it is necessary to consider the validity of the transaction. 4 Aggrieved by the aforesaid observations, the appellant which claims to have purchased the properties of the company at Ahmedbad has filed this appeal for setting aside the aforesaid observations made in Paragraph 11 of the order. 5 At the out set we may note that since the appellant was not a party to the Company Petition No. 369 of 2003 or Company Application No.1166 of 2007, the appellant could not have filed this appeal without seeking leave of this Court. However, after hearing the learned counsel for the appellant and the respondents, it appears to us that the appellant not having made any application before the learned Company Judge for the reliefs sought for herein, the appellant ought to have moved the leaned Company Judge in the first instance. Since we propose to dispose of this appeal by granting liberty to the appellant to move the learned Company Judge, we have entertained the oral application made by the learned counsel for the appellant to grant leave to appeal. Leave, as prayed for, is accordingly granted. ASN 4 app-lod.296-11.sxw 6 It is clear that the observations made by the learned Company Judge in Paragraph 11 of the impugned order are tentative as indicated in the order itself. The learned Company Judge has not expressed any final decision on the validity of the transaction under which the appellant company has claimed to have purchased properties of the company in Ahmedabad. 7 At this stage, we may also note the statement made by the learned counsel for the Official Liquidator that Official Liquidator has submitted the report before the learned Company Judge on 3rd November, 2010 seeking the following directions:- (a) In view of the para 6 and 7 of this report, whether this Hon’ble Court would be pleased to declare the sale of the movable assets to Mr. Yusufbhai I. Parmar and Mr. Deven Rameshbhai Patel held in January 2007 and the sale of the immovable properties to M/s. Taxraj Reality Pvt. Ltd. In June, 2007 as null and void and also direct the purchasers to return the said movable and immovable assets to the Official Liquidator. (b) Whether this Hon’ble Court would be pleased to direct the ex-Directors of the company (in liquidation) who had sold the movable and immovable properties to deposit the sale proceeds to the Official Liquidator within such period as this Hon’ble Court may determine. (c) In view of the para 10 of this report, whether this Hon’ble Court would be pleased to permit the Official Liquidator to take possession of the movable and immovable assets mentioned therein ASN 5 app-lod.296-11.sxw into his possession. (d) For such and other further directions as this Hon’ble Court may deem fit and proper.” 8 It is stated at the bar that the prayer clause (a) and (b) pertain to the transactions which are the subject matter of this appeal and appellant has already filed its objections. As far as prayer clause (c) is concerned, it pertains to the properties which according to Union of the Workers of the Company belong to the company under winding up. We are not concerned with any of the properties which are situated in Mumbai, New Delhi, Calcutta, Kalol in Panchmahal District, Bangalore. 9 Since the appellant was not party to any of the proceedings disposed of by the learned Company Judge by impugned order, we leave it open to the appellant to urge before the learned Company Judge for opposing prayer clause (a) and (b) of the Report. We also make it clear that we have not expressed any opinion on the merits of any of the contentions raised or sought to be raised by the appellant. 10 We also make it clear that since the prayer clause (c) has nothing to do with the properties which are the subject matter of the appeal, the learned Company Judge will be at liberty to proceed with the hearing of the Official Liquidator’s report in so far as prayer clause (c) is concerned without waiting for hearing of the reliefs prayed for by the Official Liquidator in prayer clause (a) and (b) of the report. ASN 6 app-lod.296-11.sxw 11 In terms of the above observations, appeal is disposed of. CHIEF JUSTICE GIRISH S. GODBOLE, J.