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Judgment
S.K. Keshote, J.—Heard learned counsel for the parties, perused the application, the reply filed thereto by the official liquidator and the rejoinder filed by the applicant.
This is an application u/s 446(2) of the Companies Act, 1956, and under Rule 9 of the Companies (Court) Rules, 1959.
In the application prayer has been made to allow the applicant-bank to remain out of winding up proceedings and to sell the assets of the company under its charge, as secured creditor for realising its dues.
Learned counsel for the non-applicant does not dispute that the applicant is a secured creditor of the company in liquidation and he has no objection in case the court allows the applicant-bank to remain out of winding up proceedings and permits to sell the assets under its charge. However, he submitted that it is a winding up under the court''s supervision and controls and all the actions of the applicant are subject to the sanction of the court.
Shri Sharma, learned counsel for the non-applicant, submits that subject to conditions, as what the court considers appropriate, the applicant-bank may be allowed to remain out of winding up proceedings.
The applicant-bank being a secured creditor, in case, is permitted to remain out of winding up proceedings it may not materially affect or otherwise cause prejudice to the other creditors, shareholders or contributories of the company in liquidation.
It is a case where winding up of the company has been ordered on the application filed by its own managing director.
It is really very serious and shocking that though the company is wound up the directors thereof have not cared to file the statement of affairs till day.
Adequate provisions are there in the Companies Act, 1956, to take appropriate action against the directors who defaulted in making the statement of affairs of the company in liquidation. Be that as it may, I do not see any ground or impediment to allow the applicant-bank to remain out of winding up proceedings.
Accordingly, this application succeeds and the same is allowed. The applicant-bank is permitted to remain out of winding up proceedings on the conditions,
That sale of the assets is to be effected only after it is valued by the registered valuers ;
The applicant-bank thereafter to fix the upset price of the assets of the company ;
The sale of the assets of company is to be undertaken/made after wide notice of invitation of tender/offers in national level as well as State level newspapers having wide circulation ;
The sale shall be subject to confirmation of the court;
The sale proceeds (received of sale of the assets of the company in liquidation) are to be deposited with the official liquidator forthwith ;
After confirmation of sale, the applicant-bank free to file its claim before the official liquidator and the official liquidator shall adjudicate upon the same in accordance with the law.