Polar Pharma India Ltd Vs

Arindam Sinha, J

The winding up proceeding registered as COPET no.24 of 2014 has been listed at instance of the Liquidator. Mr. Sethi, learned advocate, Liquidator submits, he had filed memo dated 11th May, 2022. Contents of the memo are reproduced below.

“That the Official Liquidator filed Report dated 1st April, 2022 for consideration of prayer of Official Liquidator made in the Report.

That taking the advantage of Order No.12 dated 10.01.2020 passed by this Hon’ble Court, the Recovery Officer of DRT-1, Delhi has passed an Order dated 25.03.2022 for sale of assets and properties by public e-auction on 18.06.2022 which is under the possession of Official Liquidator. The Official Liquidator is incurring expenses from the Common Pool Fund towards watch and ward of the factory premises of the Company in Liquidator since 06.12.2014.

In view of the above, the matter may kindly be listed in the Supplementary List for kind direction to the Official Liquidator.”

He submits, order dated 10th  January, 2020 passed by the then Company Judge be recalled.

Ms. Sahoo, learned advocate appears on behalf of Odisha Industrial Infrastructure Development Corporation (OIIDCO) and submits, she has not been served copy of recalling application.

Perused order sheet. It appears, there was opinion of the Board for Industrial and Financial Reconstruction (BIFR) that the company should be wound up and forwarded to this Court. By order dated 29th April, 2014 the Company Judge directed issuance of notice to the company to show cause as to why the recommendation for winding up will not be accepted. Pursuant thereto by order dated 22nd August, 2014, the company was directed to be wound up on recording, inter alia, following submission reproduced below.

“Mr. Mohanty, learned counsel appearing for the company do not oppose the winding up proceeding and submits that no appeal is pending before the AIFR against the order passed by the BIFR.”

It appears, thereafter Misc. Case nos. 51, 52 and 64 of 2014 were filed. Subsequent orders are regarding the Liquidator having approached the Company Court for settling and approval of number of sale notices and terms etc. OIIDCO also applied for intervention.

Then on 10th January, 2020 another learned Judge presiding over the Company Court dismissed the COPET for non-prosecution. The order is reproduced below.

“Heard Mr. A.R. Mohanty, learned counsel for the petitioner; Mr. P.K. Parhi, learned counsel for EPF Commissioner, Mr. A.C. Panda, learned counsel for intervener.

Mr. A.R. Mohanty, learned counsel for the petitioner states that he has no instruction in the matter. To that extent, he has filed a memo, which is taken on record.

Since none is there to prosecute the matter, this COPET stands dismissed for non-prosecution.”

Section 20 in Sick Industrial Companies (Special Provisions) Act, 1985 provides for winding up of sick industrial company, where the Board, after making inquiry and after consideration of all relevant facts and circumstances, having heard parties concerned is of opinion that the sick industrial company is not likely to become viable in future, its opinion may be forwarded to the High Court. That was done. Sub-section (2) requires the High Court, on the basis of the opinion, to order winding up of the company and it may proceed and cause to proceed with the winding up of the company in accordance with provisions in Companies Act, 1956, applicable in the case. It is in this way that the opinion forwarded with the record came to be registered as COPET no.24 of 2014. It is a winding up proceeding on the company having been directed to be would up by the Company Court, as aforesaid by order dated 22nd August, 2014.

The proceeding being a winding up proceeding is not a petition that could be dismissed for non-prosecution. There is no petitioner.

Order dated 10th January, 2020 is recalled.

The liquidator is directed to proceed with the winding in accordance with provisions in Companies Act, 1956 and report or apply as the case may be.

The COPET is directed to go out of a list.

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