COMP/14920/2000 1/10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD COMPANY PETITION No. 149 of 2000 With COMPANY PETITION No. 31 of 2002 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 ? ========================================================= INDUSIND BANK LTD - Petitioner(s) Versus GUJARAT OPTICAL COMMUNICATION LTD. - Respondent(s) ========================================================= Appearance : NOTICE SERVED for Petitioner(s) : 1, DS AFF.NOT FILED (N) for Respondent(s) : 1, MR ASHOK L SHAH for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE K.A.PUJ Date : 15/12/2008 ORAL JUDGMENT 1. The Company Petition No.149 of 2000 is filed by Indusind Bank Ltd., under Sections 433 and COMP/14920/2000 2/10 JUDGMENT 434 of the Companies Act, 1956 for winding up of the respondent Company on the ground that the respondent Company has failed to discharge its liabilities towards the petitioner. 2. Similarly, Company Petition No.31 of 2002 is filed by PNB Asset Management Co. Ltd., for winding up of the respondent Company. 3. One more Company Petition i.e. Company Petition No.13 of 2005 was filed by P.G.Foils Ltd. for winding up of the respondent Company. However, the said Company petition was dismissed by this Court on 28.11.2008 for want of prosecution as the petitioner failed to issue public advertisement for admission of the petition. 4. So far as Company Petition No.149 of 2000 is concerned, this Court has issued notice on 19.5.2000 and order was passed on 12.7.2000 COMP/14920/2000 3/10 JUDGMENT after considering the affidavit-in-reply dated 16.3.2000 filed on behalf of the respondent Company. Alongwith the said affidavit, notification dated 27.9.1999 issued by the State of Gujarat was annexed wherein it is stated that the respondent Company was declared as relief undertaking under the provisions of Bombay Relief Undertaking (Spl. Provision) Act, 1958. By issuance of the said notification the Government suspended all the proceedings for a period of one year commencing from 27.9.1999. Accordingly, hearing of the said petition was adjourned from time to time. Thereafter, on 21.11.2005 further order was passed by this Court taking cognizance of the fact that the Company has made its Reference under Section 15 of the Sick Industrial Companies (Special Provisions) Act, 1985 and the matter was pending consideration before the Board for Industrial and Financial Reconstruction (BIFR). The Court, therefore, COMP/14920/2000 4/10 JUDGMENT observed that since the matter was pending consideration before 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. 5. Thereafter, this Court has passed further order on 1.8.2007 taking cognizance of the affidavit filed on behalf of the respondent Company wherein it is stated that the Reference filed before the BIFR has been dismissed as not maintainable and hence this Court has admitted the petition and passed an order of advertisement to be published in English daily 'Indian Express', Ahmedabad Edition, and Gujarati daily 'Sandesh' Ahmedabad Edition. The Court has dispensed with the publication of advertisement in Government Gazette. The matter was fixed for hearing on 26.9.2007. Since the advertisement could not be published, the COMP/14920/2000 5/10 JUDGMENT Court has passed further order on 17.3.2008 observing therein that since Company Petition No.149 of 2000 was first in point of time, the petitioner in Company Petition No.13 of 2005 has not published any advertisement as it was understood that the advertisement was to be published by the petitioner of Company Petition No.149 of 2000. The Court, therefore, directed the petitioner of Company Petition No.149 of 2000 to issue public advertisement as per order dated 1.8.2007 making it returnable on 21.4.2008. The Court in that case has also observed that Mr.B.N.Keshwani, learned advocate appearing for petitioner in Company Petition No.31 of 2002 has expired and hence office was directed to issue fresh notice to the petitioner of Company Petition No.31 of 2002. The petitioner of Company Petition No.31 of 2002 was, therefore, directed to make an alternative arrangement on or before the next date of hearing i.e. 21.4.2008. COMP/14920/2000 6/10 JUDGMENT 6. On 15.9.2008, the Court has permitted Dr.Sonia Hurra, learned advocate appearing for the petitioner of Company Petition No.149 of 2000 to retire from the proceeding and fresh notice was issued. Despite issuance of fresh notice nobody appeared and hence further order was passed by the Court on 20.10.2008 observing therein that the petitioner of the company Petition Nos.149 of 2000 and 31 of 2002 are not interested in prosecution of these two Company Petitions. The Court, therefore, passed an order of advertisement in Company Petition No.13 of 2005. Even the advertisement was not published in that petition and hence the Court has dismissed the said petition on 28.11.2008. 7. In view of the above facts and circumstances, the Court is of the view that none of the petitioners of Company Petition COMP/14920/2000 7/10 JUDGMENT Nos.149 of 2000 and 31 of 2002 are interested in prosecuting further with the Company Petition No.149 of 2000 as well as Company Petition No.31 of 2002 filed against the respondent Company. This Court could have, therefore, dismissed these two petitions for want of prosecution as it was done in Company Petition No.13 of 2005. However, these are the only two petitions filed against the respondent Company for its winding up. The respondent Company is also no more interested to continue its existence as the assets of the Company are already taken over by the secured creditors by exercising their powers under Securitization Act and it is only because of that Reference pending before BIFR came to be dismissed as non-maintainable. In these peculiar facts of the case and since no petitioning creditor is ready and willing to undertake the responsibility of issuing public advertisement for admission of the winding up petition and since the respondent COMP/14920/2000 8/10 JUDGMENT Company is agreeable to the winding up order that may be passed by this Court, as it was initially contended before the Court by his advocate Mr.Ashok L. Shah, the Court hereby thinks it just and proper to pass winding up order in Company Petition No.149 of 2000 appointing the Official Liquidator as the Liquidator of the respondent Company and directing him to take charge of the assets of the Company in liquidation, after making proper inquiry with the Registrar of Companies and after calling necessary explanation from the Ex-Directors of the Company. While taking charge of the assets of the Company in liquidation, the Official Liquidator shall not take charge of those properties, the possession of which is already taken by the banks and/or financial institutions. The Official Liquidator shall report to this Court about such properties. The Official Liquidator is further directed to issue public advertisement in two COMP/14920/2000 9/10 JUDGMENT newspapers, namely, 'DNA' English daily and 'Divya Bhaskar' Gujarati daily, both of Ahmedabad Edition, stating therein that this Court has already passed the winding up order in Company Petition No.149 of 2000 and he was appointed as the Liquidator of the Company. The Official Liquidator is further directed to invite claim from the creditors and workers in the said advertisement. The Official Liquidator is further directed to ask Ex-Directors of the Company to file Statement of Affairs and ask them to appear before him for recording their statement under Rule 130 of the Company (Court) Rules, 1959. The Official Liquidator is directed to file compliance report before this court covering the follow up action taken by him in respect of the above directions, within three months from today. 8. Subject to the aforesaid directions and observations the Company Petition No.149 of COMP/14920/2000 10/10 JUDGMENT 2000 is allowed. 9. Since the winding up order is passed in Company Petition No.149 of 2000 no separate order is required to be passed in Company Petition No.31 of 2002 and it is accordingly disposed off. (K. A. PUJ, J.) kks