J. K. Mehra ( 1 ) IN this case the Official Liquidator has challenged the saleof certain properties of the Company in respect whereof Official Liquidator hadbeen appointed as the Provisional Liquidator, purported to have been affected bydelhi Financial Corporation Limited (hereinafter referred to as "the DFC") inexercise of its powers under Section 29 of the State Financial Corporations Act. ( 2 ) AFTER the arguments, I was informed that similar controversy is pendingdecision by the Hon ble Supreme Court and I should await the outcome thereof. Now Counsel have pointed out that the Hon ble Supreme Court has since decidedthe matter in the case of Industrial Credit and Investment Corporation of India Ltd. v. M/s. Srinivas Agencies and Ors. , reported as 1996 (3) Supreme 40 . Mr. Nayar,counsel for the Official Liquidator, concedes that the controversy before thehon ble Supreme Court was not identical with the questions arising in the presentcase as would appear from the discussion appearing hereinafter. ( 3 class=pno> N> 3 ) BRIEFLY stating the facts of the case are as under : ( 4 ) THE Company "disco Electronics Ltd. " (hereinafter referred to as "disco")had created a mortgage in favour of the Delhi Financial Corporation to secure loanfacilities obtained by it on 20. 1. 1986. On 4/7. 12. 1990, the DFC on account ofunsatisfactory operation and the defaults committed by the Company recalled theloan. This notice was followed by another notice of 29/10/1991 threateningto take possession of the Unit at premises No. A-83, Okhla Industrial Area, Phaseii, New Delhi and the machinery installed at A-84, Okhla Industrial Area, Phase-II, New Delhi. After the DFC had resumed possession under Section 29 of the Statefinancial Corporation Act, the DISCO approached the DFC with the proposal thatit should carry out the sale of the said property and in fact produced an intendingpurchaser namely, M/s. Shivalik Traders for settling dues of the Corporation, butdespite the Corporation having agreed to accommodate DISCO the said purchaserfailed to honour its commitments as a consequence whereof possession of the saidproperty No. A-83, Okhia Industrial Area, Phase-II together with the machinerylying at A-84, Okhia Industrial Area, Phase-II was taken over by the Corporationon 23. 2. 1992 DISCO had undertaken to retain the possession for and on behalf ofthe DFC. 2. 1992 DISCO had undertaken to retain the possession for and on behalf ofthe DFC. In other words, DISCO continued to be in possession, but only ascustodian on behalf of the DFC which means that DISCO continued to hold theproperty though as agent of the DFC and for and on its behalf. The said propertieswere advertised for sale by the DFC on 4. 6. 1992 and the sale was conducted in theoffice of the DFC on 22. 6. 1992 when the highest bid of Rs. 18 lakhs was received. Thedfc called upon DISCO to produce a higher bid if they wanted to do so. Thereafterone Mr. Vinod Gupta made an offer of Rs. 20 lakhs. However, this bidder after sometime withdrew his offer inview of the DFC having received an offer of Rs. 28. 5 lakhson 23. 9. 1992 which offer was accepted by the DFC. ( 5 ) CANARA Bank claimed to have a charge on the movables lying stored at A-83, Okhla Industrial Area, the DFC called upon the Canara Bank to lift the stock asit wanted to hand over the vacant possession of the premises to the successfulbidder. ( 6 ) WHILE all this was going on, a petition for winding up of DISCO was filedon 3/03/1992 which was returned for removal of office objection and wasrefiled on 26/03/1992 i. e. , before the sale of the property and it came up fororders on 27/03/1992. Even before passing of the order for admission, thecourt had passed an order on 4. 8. 1992 (before the offer of impugned sale wasreceived on 23. 9. 1992) restraining DISCO from disposing of in any manner any ofits assets or making any payment to any creditor till further orders. The winding uppetition was admitted vide orders dated 29. 9. 1992. On the same day, the Officialliquidator attached to this Court was appointed as a Provisional Liquidator of thecompany with the direction to forthwith take over the assets and records of thecompany. Thereafter on 19/10/1992, there was a specific order of statusquo with regard to possession of property No. A-84, Okhia Industrial Area, Phase-II, New Delhi. Further vide order dated 5/11/1992 the specific injunctionwith regard to possession of the said property and for removing any finished andsemi-finished goods, material, raw material, etc. from the said premises has beenpassed. ( 7 ) ACCORDING to the DFC, they had already issued final notice on 24. Further vide order dated 5/11/1992 the specific injunctionwith regard to possession of the said property and for removing any finished andsemi-finished goods, material, raw material, etc. from the said premises has beenpassed. ( 7 ) ACCORDING to the DFC, they had already issued final notice on 24. 7. 1992before the admission of the winding-up petition and appointment of the Provisionalliquidator and even the offer of the successful bidder had been received on23. 9. 1992 which was also prior to the appointment of the Provisional Liquidator. This was, however, subsequent to the injunction order dated 4. 8. 1992. Counsel forthe DFC states that in fact, after admission of the winding-up petition andappointment of the Provisional Liquidator, the DFC proceeded to deliver only thepossession to the successful bidder on 16. 10. 1992. As such the order of 19/10/1992 had absolutely no effect on the prior act of handing over the possession. However, no explanation has been made available for ignoring the prior injunctionorder passed by Court on 4. 8. 1992. It was also contended by Mr. Swatanter Kumar (as he then was) Counsel for the DFC that the action of the DFC was under Section29 of the State Financial Corporation Act and according to him, the provisionsthereof would over-ride the provisions of the Companies Act by virtue of theprovisions contained in Section 46-B of the State Financial Corporation Act, whichreads as under: "46-B. Effect of Act on other laws.-The provisions of this Act and of anyrules or orders made thereunder shall have effect notwithstanding anythinginconsistent therewith contained in any other law for the time being in forceor in the memorandum of articles of association of an industrial concern orin any other in strument having effect by virtue of any law other than this Act,but save as aforesaid, the provisions of this Act shall be in addition to, andnot in derogation of, any other law for the time being applicable to anindustrial concern. " ( 8 ) HE had further submitted that the State Financial Corporation Act, isspecial law, vis-a-vis the Companies Act which is general law and, therefore, itsprovisions will prevail over Companies Act, 1956. " ( 8 ) HE had further submitted that the State Financial Corporation Act, isspecial law, vis-a-vis the Companies Act which is general law and, therefore, itsprovisions will prevail over Companies Act, 1956. He had also contended that oncepossession istaken over under Section 29 of the State Financial Corporation Act, thedfc is deemed to have acquired the same right to dispose of/ sell the said propertyas the owner and that the owner is left with no right except the equity of redemptionto redeem the property by satisfying the claim of the DFC. But no satisfactoryanswer was forthcoming to the question that if DISCO by virtue of an injunction isunable to sell, could DFC acquire rights superior to those of the owner to sell indisregard to the order of injunction ? ( 9 ) MR. Nayar appearing for the Official Liquidator, has strongly challengedthis position and has contended that once a Company goes into liquidation or aprovisional Liquidator is appointed, the special provisions governing the rights ofthe parties subsequent to such liquidation or the provisional liquidation wouldprevail as special law and will not be deemed to be the general law and that suchorder would relate back to the date of presentation of the winding-up petition interms of the provisions of Sections 537 and 441 (2) of the Companies Act. ( 10 ) MR. Mukul Rohtagi, appearing for the purchaser, had argued mainly thathis client is a bona fide purchaser, for valuable consideration without notice of anydefect in title, and has acquired the property as absolute owner. He has furthercontended that the purchaser s bid was the highest and the maximum that couldbe obtained under the circumstances and that the purchaser had offered adequateprice. ( 11 ) BOTH sides and also the purchaser had addressed lengthy arguments andhave cited various authorities in support of their respective contentions. ( 12 ) SOME of the questions that fall for consideration in this case are : (A) Is presentation of the winding-up petition, without the consent of thedelhi Financial Corporation after taking over by it of the possessionpermissible and competent in law in view of the provisions containedin Section 32-E of the State Financial Corporation Act ? ( 12 ) SOME of the questions that fall for consideration in this case are : (A) Is presentation of the winding-up petition, without the consent of thedelhi Financial Corporation after taking over by it of the possessionpermissible and competent in law in view of the provisions containedin Section 32-E of the State Financial Corporation Act ? (B) What is the effect of amendment the Companies Act, which is subsequent to the enactment of State Financial Corporation Act withparticular reference to Sections 529-A, 446 (2), each of which containsa non-obstante clause read with proviso to Sections 529,537 and 441 (2)of the Companies Act in the light of the provisions of Sections 29 and46-B of State Financial Corporation Act ? (C) If the provisions of Section 537 of the Companies Act are applicable,can in the circumstances of this case, leave to sell be granted to the DFCex-post facto ? If so, is the Company Court competent not to accept theoffer on the plea that the price offered is not adequate ? ( 13 ) ON the question of non-maintainability or incompetence of the windingup petition if filed without the consent of the Delhi Financial Corporation as persection 32-E of the State Financial Corporation Act, I am unable to accept thecontention of Delhi Financial Corporation, as in fact, no take over of Managementof the Company was ever effected. Take over of Management is quite distinct fromtake over of possession for the purpose of sale of establishment. In the former caseaction is resorted -to with a view to nurse and rehabilitate the establishment byproviding better management which is not the position in the latter case. In thepresent case, even the actual physical possession had continued to be with DISCO,though in its capacity as Custodian of the DFC and there is no evidence on recordof any take over of the Management. This position is well-settled and there cannotbe any dispute that take over of Management of an undertaking is quite distinctfrom taking over of its assets for the purpose of sale thereof for satisfaction of thedues of The State Financial Corporation. ( 14 ) MR. Swatanter Kumar contended that the Corporation had alongwith thepossession of the establishment taken over the management of the industrial unitalso. He has tried to contend that take over of the management is synonymous withthe possession. I am unable to accept this contention. ( 14 ) MR. Swatanter Kumar contended that the Corporation had alongwith thepossession of the establishment taken over the management of the industrial unitalso. He has tried to contend that take over of the management is synonymous withthe possession. I am unable to accept this contention. The expression "management" used in Section 32-G of the State Financial Corporation Act is in a specialcontext and that is a special provision confined to the cases where only managementis taken over and the intention of the legislature appears to be to make a separateprovision for the take over of the management by the Financial Corporation witha view to help the unit to revive by providing better Management and for that reasonit is desirable that the presentation of the winding-up petition proceedings inrespect thereof should not be allowed without the knowledge and consent of thefinancial Corporation. Nothing has been brought on record which shows that themanagement was ever taken over for such purpose. In fact the admitted positionin the present case is that the physical possession of the properties in dispute wasnever taken over by the officers of the DFC, but was allowed to be continued withdisco (in liquidation), although in its capacity as Custodian on behalf of the DFC. Such a situation by no means can be construed as taking over of the Managementand the factual position, as set out, could not be construed or read along with theprovision of Section 29 of the State Financial Corporation Act as has been contendedby Mr. Swatanter Kumar. The object of the two sections is different. While the objectof Section 29 of the State Financial Corporation Act is to provide a speedy mode ofenforcing security for realisation of the dues of the Financial Corporation, the objectof Section 32-G of the said Act appears to be that the take over of Management ofanindustrial undertaking/unit is to nurse and rehabilitate the undertaking/unit byproviding it with efficient Management. The expression "management" has beenthe subject matter of repeated ordinances. Acts as well as judgments occurring bothunder the Industrial Development Regulations Act as well as State Financialcorporation Act and various ordinances when only the management of some of thesick mills or sick textiles undertakings or some other industrial undertakings wastaken over by the Government. The expression "management" has beenthe subject matter of repeated ordinances. Acts as well as judgments occurring bothunder the Industrial Development Regulations Act as well as State Financialcorporation Act and various ordinances when only the management of some of thesick mills or sick textiles undertakings or some other industrial undertakings wastaken over by the Government. If the Legislature intent was that the take over of thepossession would include take over of the Management also, the Section 29 of thesaid Act would have been worded differently and there would have been no needto enact Section 32-G which provides for take over of the Management only. Thescope of the two sections is quite different and distinct and they deal with twodifferent situations. Such a construction is in line with the rule of harmoniousconstruction of the said provisions of law. ( 15 ) THE Counsel for Official Liquidator has also raised contention that theexpression "management of Undertaking being taken over" and "its control", arequite separate and distinct and pointed out that the Hon ble Supreme Court hadfound these expressions to be quite distinguishable. The meaning of two expressions take their colour from the context in which those are used. In this context, areference be made to the case of The Life Insurance Corporation of India v. D. J. Bahadar and Ors. , reported as AIR 1980 SC 2181 , and the case of S. V. Khandoskar v. VM. Deshpande, ITO, Bombay and Am. , reported as AIR 1972 SC 878 . In the light ofthe above discussion, I do not find any merit in this contention and reject this pleaof DFC and hold that the provisions of Section 32-E of the State Financial Corporation Act are not attracted. ( 16 ) SINCE all other points and contentions relate to the provisions of the Statefinancial Corporation Act, 1951 and the rights and obligations thereunder vis-a-visthe rights and obligations under the Companies Act, 1956 and the effect of theprovisions of the two Acts, these can be dealt with together. ( 17 ) THE relevant provisions of the State Financial Corporation Act (exceptsection 46-B already quoted hereinabove) and the Companies Act are as under : "29. ( 17 ) THE relevant provisions of the State Financial Corporation Act (exceptsection 46-B already quoted hereinabove) and the Companies Act are as under : "29. Rights of Financial Corporation in case of default- (1) Where anyindustrial concern, which is under a liability to the Financial Corporationunder an agreement, makes any default in repayment of any loan or advanceor any instalment thereof or in meeting its obligations in relation to anyguarantee given by the Corporation or otherwise fails to comply with theterms of its agreement with the Financial Corporation, the Financial Corporation shall have the right to take over the management or possession or bothof the industrial concern, as well as the right to transfer by way of lease orsale and realise the property pledged, mortgaged, hypothecated or assignedto the Financial Corporation. (2) Any transfer of property made by the Financial Corporation, in exerciseof its powers under Sub-section (1), shall vest in the transferee all rights inor to the property transferred as if the transfer had been made by the ownerof the property. (3) The Financial Corporation shall have the same rights and powers withrespect to goods manufactured or produced wholly or partly from goodsforming part of the security held by it as it had with respect to the originalgoods. (4) Whether any action has been taken against an industrial concern underthe provisions of Sub-section (1), all costs, charges and expenses which in theopinion of the Financial Corporation have been properly incurred by it asincidental thereto shall be recoverable from the industrial concern and themoney which is received by it shall, in the absence of any contract to thecontrary, be held by it in trust to be applied firstly, in payment of such costs,charges and expenses and, secondly, in discharge of the debt due to thefinancial Corporation, and the residue of the money so received shall bepaid to the person entitled thereto. (5) Where the Financial Corporation has taken any action against anindustrial concern under the provisions of Sub-section (1), the Financialcorporation shall be deemed to be the owner of such concern, for thepurposes of suits by or against the concern, and shall sue and be sued in thename of the concern. (5) Where the Financial Corporation has taken any action against anindustrial concern under the provisions of Sub-section (1), the Financialcorporation shall be deemed to be the owner of such concern, for thepurposes of suits by or against the concern, and shall sue and be sued in thename of the concern. " ( 18 ) THE relevant provisions of the Companies Act with which we areconcerned in the present case are quoted hereinbelow for ready reference : "section 441 (1): Where, before the presentation of a petition for the winding-up of a Company by the Court, a resolution has been passed by the Companyfor voluntary winding-up, the winding-up of the Company shall be deemedto have commenced at the time of the passing of the resolution, and unlessthe Court, on proof of fraud or mistake, thinks fit to direct otherwise, allproceedings taken in the voluntary winding-up shall be deemed to havebeen validly taken. (2) In any other case, the winding-up of a Company by the Court shall bedeemed to commence at the time of the presentation of the petition for thewinding-up. SECTION 442 : Power of Court to stay or restrain proceedings againstcompany. At any time after the presentation of a winding-up petition and before awinding-up order has been made, the Company, or any creditor or contributory, may- (a) where any suit or proceedings against the Company is pending in thesupreme Court or in any High Court, apply to the Court in which thesuit or proceeding is pending for a stay of proceedings therein; and (b) where any suit or proceeding is pending against the Company in anyother Court, apply to the Court having jurisdiction to wind-up thecompany, to restrain further proceedings in the suit or proceeding;and the Court to which application is so made may stay or restrain theproceedings accordingly, on such terms as it thinks fit. 446. Suits stayed on the winding-up order. (1) When a winding-up order has been made or the Official Liquidator hasbeen appointed as provisional liquidator, no suit or other legal proceedingshall be commenced, or if pending at the date of the winding-up order, shallbe proceeded with, against the Company, except by leave of the Court andsubject to such terms as the Court may impose. (2) The Court which is winding-up the Company shall, notwithstandinganything contained in any other law for the time being in force. Lavejurisdiction to entertain, or dispose of. (2) The Court which is winding-up the Company shall, notwithstandinganything contained in any other law for the time being in force. Lavejurisdiction to entertain, or dispose of. (Emphasis supplied) (a) any suit or proceeding by or against the Company; (b) any claim made by or against the Company (including claim by oragainst any of its branches in India); (e) any application made under Section 391 by or in respect of thecompany; (d) any question of priorities or any other question whatsoever, whetherof law or fact, which may relate to or arise in course of the winding-upof the Company;whether such suit or proceeding has been instituted or is instituted, or suchclaim or question has arisen or arises or such application has been made oris made before or after the order for the winding-up of the Company, orbefore or after the commencement of the Companies (Amendment) Act,1960. (3) Any suit or proceeding by or against the Company which is pending inany Court other than that in which the winding-up of the Company isproceeding may, notwithstanding anything contained in any other law forthe time being in force, be transferred to and disposed of by that Court. (4) Nothing in Sub-section (1) or Sub-section (3) shall apply to any proceeding pending in appeal before the Supreme Court or a High Court. 529a. Overriding preferential payments- (1) Notwithstanding anything contained in any other provision of this Actor any other law for the time being in force, in the winding-up of a Company. (Emphasis supplied) (a) workman s dues; and (b) debts due to secured creditors to the extent such debts rank underclause (e) of the proviso to Sub-section (1) of Section 529 pan passuwith such dues,shall be paid in priority to all other debts. (2) The debts payable under Clause (a) and Clause (b) of Sub-section (1) shallbe paid in full, unless the assets are insufficient to meet them, in which casethey shall abate in equal proportions. 537. Avoidance of certain attachments, executions, etc. (2) The debts payable under Clause (a) and Clause (b) of Sub-section (1) shallbe paid in full, unless the assets are insufficient to meet them, in which casethey shall abate in equal proportions. 537. Avoidance of certain attachments, executions, etc. , in winding-up by orsubject to supervision of Court- (1) where any Company is being wound-up by or subject to the supervisionof the Court- (a) any attachment, distress or execution put in force, without leave of thecourt, against the estate or effects of the Company, after the commencement of the winding-up; or (b) any sale held without leave of the Court, of any of the properties oreffects of the Company after such commencement;shall be void. (2) Nothing in this section applies to any proceedings for the recovery of anytax or impost or any dues payable to the Government. " ( 19 ) COUNSEL for the DFC has cited various authorities wherein the provisionsof various Special Acts were considered vis-a-vis Companies Act and in the contextof those provisions. Companies Act was held to be general law. He in support hasrelief upon Forwarding (0) Ltd. v. Port Trust of Vizakapatnam and Ors. , reported as1987 (61)Com. Cases513. 1nthiscase,asinglejudgeof Bombay High Court has heldthat the steps taken by the Port Trust Authorities are special powers under the Porttrust Act which is a special Act viz-a-viz the Companies Act. In Comrade Bank Ltd. v. Jyoti Bala Desai, reported as AIR 1962 Calcutta 86, it has been held that thebanking Companies Act was a special Act viz-a-viz the Companies Act. Thejudgment in the case of Damji Valji Shah and Am. v. Life Insurance Corporation ofindia and Ors. , reported as AIR 1966 SC 135 , was also cited in this connection. Thecourt in that case held that the Tribunal set up under LIC Act would not loosejurisdiction to proceed if a Company was to be wound-up subsequent to the Lifeinsurance Corporations Act coming into force. In Rashtriya Mill Mazdoor Sanghnagpurv. Model Mills Naghrpur, reported as 1984 (3) Company Law Journal 249,the Supreme Court had held that the provisions of the Industrial Disputes Act andthe Bombay Industrial Regulations Act were special provisions viz-a-vii theprovisions of the Companies Act. All these decisions were rendered in the light ofthe keeping in view the purpose of the provisions of different Acts and in the lightof the facts prevailing in each case. All these decisions were rendered in the light ofthe keeping in view the purpose of the provisions of different Acts and in the lightof the facts prevailing in each case. ( 20 ) IN fact, the Legislature, on realising the need to safeguard the wages ofworkers, amended the Companies Act and enacted Section 529-A, quotedhereinabove, as also amended Section 529 by providing provisos to that section,which read as under: ". . . . Provided that the security of every secured creditor shall be deemed tosubject to a pari passu charge in favour of the workmen to the extent of theworkmen s portion therein, and where a secured creditor, instead ofrelinquishing his security and proving his debt, opts to realise his security,- (a) the liquidator shall be entitled to represent the workmen and enforcesuch charge; (b) any amount realised by the Liquidator by way of enforcement of suchcharged shall be applied rateably for the discharge of workmen dues;and (e) so much of the debt due to such secured creditor as could not berealised by him by virtue of the foregoing provisions of this proviso orthe amount of the workmen s portion in his security, whichever is lessshall rank pan passu with the workmen s dues for the purposes ofsection 529-A. " ( 21 ) COUNSEL for Official Liquidator apart from drawing distinctions in thecases cited on behalf of the DFC has pointed out that the provisions of the Statefinancial Corporations Act are only complementary and not in derogation of theprovisions of the Companies Act. In support of this argument, he has referred to thelatter part of Section 46-B of the State Financial Corporation Act. He has also reliedupon the observations of the Hon ble Supreme Court in Khandoskar s case (supra ). He has also cited a Full Bench judgment in the case of Income Tax Officer-v. Officialliquidator (Kerala), reported as 1985 (58) Corn. Cases 590, in which it was held thatthe assessment proceedings of Income-tax Act are special proceedings and wouldcontinue, but the recovery order would not be passed as the recovery fromcompany in liquidation is governed by the Companies Act. ( 22 ) ACCORDING to Counsel for DFC, the provisions of Section 29 of the Statefinandal Corporation Act are self-contained. According to him,. ( 22 ) ACCORDING to Counsel for DFC, the provisions of Section 29 of the Statefinandal Corporation Act are self-contained. According to him,. the expression"deemed ownership of the concern" in Section 29 (5) of the State Financial Corporations Act as well as the expression "vesting" used in the Sub-section (2) clearlyindicates that the property passed to the Corporation in fact and in law includingthe vesting of title and possession. To construe the term "vesting". Counsel has citedthe case of The Vatticherukuru Village Panchay at v. Nori Veitkataraina Deekshithulu6- Ors. , reported as Vol. 5 JT 1991 SC 140, where the Hon ble Supreme Court haddealt with the word "vesting" in paras 12 and 13 of the judgment. He has also citedsections 18 and 19 of the Transfer of Property Act in support of his contention thatthe "vesting" includes both possession and "title and vests a definite right infavour of the Corporation and the Corporation acquires all the rights of the ownerin the property in question. This, in my view, is an extreme argument and cannotbe accepted in toto as would appear from the discussion hereinafter. I find that theexpression "vest" used in Sub-section (2) of Section 29 of the State Financialcorporation Act is with reference to the vesting of property in the Transferee as ifit had been transferred by the owner himself. Thus this sub-section by itself does notvest the property absolutely in DFC, but confers on its same right as the owner hasonly for the limited purpose of transferring the property. Sub-section (5) of the saidsection deals with right to sue or defend any action and for that limited purpose onlydfc would be deemed to be the owner of the concern so that it can file or defendsuits by or against the concern. It is also not disputed that under Section 29 (4) of thestate Financial Corporation Act, the DFC cannot retain more than its dues out of thesale proceeds. Thus the object of Section 29 of State Financial Corporation Act is tomake provision for State Financial Corporations to enforce without recourse to asuit, the securities only to recover their dues. In other words, DFC is only a class ofsecured creditor who has acquired special rights under Section 29 to realise thesecurity for recovery of its dues without approaching the Court. In all otherrespects, it continues to retain the character of a secured creditor. In other words, DFC is only a class ofsecured creditor who has acquired special rights under Section 29 to realise thesecurity for recovery of its dues without approaching the Court. In all otherrespects, it continues to retain the character of a secured creditor. In the absence ofwinding-up or commencement of winding up proceedings, DFC would be perfectlywithin its rights to sell the security provided there is no injunction by Courtrestraining sale thereof, and convey good marketable title as the owner itself coulddo. However, the position would be different if the owner is under any disabilitysuch as injunction. The DFC would not be entitled to ignore the injunction,particularly, in view of the fact that the Company at that time was holding theproperty as Custodian appointed by the DFC. Further DFC could not acquire anyright superior to those of the actual owner who at the relevant time was under adisability to sell on account of injunction order of the Court. ( 23 ) MR. Kumar has laid lot of stress on the non-obstante provision in the Statefinancial Corporation Act. I am unable to accept the contention that the provisionsof State Financial Corporation Act override all the provisions of the Companies Act. A reference in this behalf be made to the Full Bench decision of this Court in the caseof LIC v. Asia Udyog Pvt. Ltd. , reported as ILR 1982 Vol. I Delhi 582. 1 cannot acceptthe construction placed by Mr. Swatanter Kumar on the provisions of Sections 29and 46-B and 32-E of the State Financial Corporation Act to mean total ouster ofjurisdiction of the Company Court and that its provisions will always and in allcircumstances prevail over all provisions of Companies Act even after winding-upor provisional winding-up. The legislature in its own wisdom amended thecompanies Act and enacted provisions such as Section 529-A and provisos tosection 529 in order to protect the wages of the workmen notwithstanding any lawto the contrary, workmen s wages have now been put on par with the claims ofsecured creditors and their claims now rank pan passu with the claims of securedcreditors. Thus a new category of secured creditors has been created whose interestare to be represented and taken care of by the Official Liquidator. On principles ofinterpretation of statutes, Mr. Kumar in support of his stand, had also cited thefollowing cases. ( 24 ) STATE of Bihar v. Hira Lal Kejriwal b Am. Thus a new category of secured creditors has been created whose interestare to be represented and taken care of by the Official Liquidator. On principles ofinterpretation of statutes, Mr. Kumar in support of his stand, had also cited thefollowing cases. ( 24 ) STATE of Bihar v. Hira Lal Kejriwal b Am. , reported as AIR 1960 SC 47 ;s. Gumej Singh v. S. Partap Singh Kainon, reported as AIR 1960 SC 122 ; D. Macropollo b Co. (P) Ltd. v. D. Macropollo and Co. (P) Ltd. Employees Union andors. , reported as AIR 1959 SC 1012 ; State of West Bengalv. Union of India, reportedas AIR 1963 SC 1241 ; M/s. Philips India Ltd. v. Labour Court, Madras and Ors. ,reported as AIR 1985 SC 1034 ; The Balasinor Nagrik Co-operative Bank Ltd. v. Bahubhai Shanker Lal Pandya and Ors. , reported as AIR 1987 SC 849 ; Osmaniauniversity Teachers Association v. State of A. P. and Anr. , reported as AIR 1987 SC2034; Captain Subhas Kumar v. The Principal Officer, Mercantile Marine Deptt. ,madras, reported as AIR 1991 SC 1632 ; and Kalawati Rai v. Soinyabai and Ors. ,reported as AIR 1991 SC 1581 . ( 25 ) A perusal of these decisions would support the view that each case hasto be decided on its own facts and no rule can be laid down unmindfulof the facts of the case nor do those decisions support the extreme propositionadvocated by Mr. Swatanter Kumar. ( 26 ) HE has also based his argument on the decision of this Court in the caseof Aryavarta Plywood Ltd. (In Liquidation) v. Rajasthan State Industrial andinvestments Corporation Ltd. and Anr. , reported as 1990 (1) Company Law Journal222, wherein it has been held that the provisions of Section 32 (x) of the Statefinancial Corporation Act are applicable to only court proceedings and theprovisions of Sections 29 and 31 of the State Financial Corporation Act are quiteindependent. There can be no quarrel with this proposition of law. But in that case,the learned Single Judge has further gone on to consider that for the proposition ofsection 537 of Companies Act, the crucial date is the date of winding-up order. Thisview is contrary to the express provisions of Section 537 of the Companies Act whichrefers to the date of "commencement of winding-up" and not "winding-up". Theexpression "winding-up" has been duly defined in Section 441, quoted hereinabove. Thisview is contrary to the express provisions of Section 537 of the Companies Act whichrefers to the date of "commencement of winding-up" and not "winding-up". Theexpression "winding-up" has been duly defined in Section 441, quoted hereinabove. Sub-section (2) of Section 441 provides that the winding up of a Company by thecourt shall be deemed to commence at the time of the presentation of the petitionfor the winding-up. For that reason, this part of that judgment appears to be perincurium and cannot constitute aprecedent. ( 27 ) THE Counsel appearing on behalf of DFC, while replying to the arguments of Counsel for Official Liquidator has laid great emphasis on the point thatthe take over of the possession by DFC was earlier to the presentation of thewinding-up petition. According to him, even the acceptance of the offer forimpugned sale by DFC in its effort to sell the property had taken placeprior to thepassing of the provisional winding-up order. It was only the question of deliveringthe property against payment which remained to be performed when the order forappointment of provisional liquidator was made. The possession was also delivered prior to the status-quo order dated 19. 10. 1992. He has, however, not referredto the injunction order dated 4. 8. 1992whichwasvery much in force at the time whenthe offer for sale was received on 23. 9. 1992 and accepted by DFC nor offered anyexplanation for their going ahead with sale in breach of and contrary to the saidinjunction order. He stated that it was by way of abundant caution that they havecome forward to assist the Court on the question that their right to realise theproperty remains unimpaired by provisional winding-up and this Court will haveno jurisdiction to interfere therein even if higher price could be fetched for thatproperty. According to him, the sale stood concluded and that the execution andthe registration of the sale deed was a mere formality. ( 28 ) MR. Swatanter Kumar further contended that assuming that the Company Court has jurisdiction to see that there is no fraudulent preference or fraud ofany kind involved it could grant leave/permission to sell ex-post facto. He submitsthat the petitioners in the winding-up petition were colluding with the Companyand its directors and had intentionally not got issued any notice to DFC of the filingof the Company petition and submits that the fraud in fact is attributable to thepetitioners and the Company and not DFC. He submitsthat the petitioners in the winding-up petition were colluding with the Companyand its directors and had intentionally not got issued any notice to DFC of the filingof the Company petition and submits that the fraud in fact is attributable to thepetitioners and the Company and not DFC. He further submits that there cannot beany occasion for presentation for leave to sell when the Company is not gone intoliquidation yet or provisional liquidation. As such the intention of legislation wasto enable such creditors to approach the Court for leave ex-post facto. Mr. Swatanterkumar has also placed great emphasis on Section 32 of the State Financialcorporation Act. For this reason also he states that if atall it is held that the Companycourt could look into such sale transaction the Court should look into the bona fideconduct of the State Financial Corporation and grant leave ex-post facto and allowit to complete the sale. According to him, the provisions of Sections 446 and 537 ofthe Companies Act are analogous to one another. He has cited the case of ITO,ernakulam v. OL, Palai Central Bank Ltd. , reported as 1985 0 TLR 2143, wherein itwas held that the assessment proceedings are not legal proceedings. To the sameeffect under the Industrial Disputes Act is the judgment in Vadervu Suryanarayanav. Kocherlakota Venkata Subbarao and Am. , reported as AIR 1951 Madras 947. Hehas also relied upon the cases of Pyare Lal v. N. D. M. C. , and L. I. C. of India v. D. J. Bahadar and Ors. , reported as AIR 1980 SC 2181 , and has proceeded on to reiteratethat Section 29 of the State Financial Corporation Act is a self-contained Code/provision which provides for the securing of the property. He contends that thedfc had given full opportunity to the Company to secure a better offer but thecompany has failed to do so and that the offer at which the DFC has agreed to sellbeing Rs. 28. 50 lakhs was the highest available and that is why the said offer wasaccepted. He thus contends that the DFC has acted fairly and in a bonafide manner. ( 29 ) MR. Swatanter Kumar further contends that the DFC was havingstatutory right and contractual power to enforce the mortgage under Section 29 ofthe State Financial Corporation Act, the provisions of Section 537 of the Act wouldnot be attracted in this case. He thus contends that the DFC has acted fairly and in a bonafide manner. ( 29 ) MR. Swatanter Kumar further contends that the DFC was havingstatutory right and contractual power to enforce the mortgage under Section 29 ofthe State Financial Corporation Act, the provisions of Section 537 of the Act wouldnot be attracted in this case. ( 30 ) IN my view, in the taking over of the possession under Section 29 of thestate Financial Corporation Act, the owner always retains the right of ownershipof the property does not pass on to the Financial Corporation butitisonlyforcertainpurposes of affecting recovery of its dues by the sale and to remove any impediments in their way that the statute by a deeming provision has granted to thefinancial Corporation powers of the owner for the limited purpose of realising thesecurity, to convey good marketable title to the purchaser, and to defend any legalaction, but the property does not absolutely vest in it. In Thota China Subba Raoand Ors. v. Mattapalli Raju and Ors. , reported as AIR 1950 Federal Court 1; Ganga Dhar v. Shankarlal and Ors. , reported as AIR 1958 SC 770 ; Narandas Karsondas v. S. A. Karntam and Am. , reported as AIR 1977 SC 774 , it has been held that the rightof redemption subsists till the mortgaged property is actually transferred byexecution of sale deed and its registration. Similarly when the book debts arehypothecated with the Bank, the hypothecation could not make the Bank the ownerof the debt, and that the of has to record the debts. Mr. Nayyar has contended thatsection 537 has to be read with Section 442 and has also contended that Section 537is totally independent of and not a section setting out the consequences of disregardof Section 446. Section 537 is really complimentary to Section 442 and not to Section446 of the Companies Act. He has cited in support the decision in Naresh Fabs v. Gudiya Exports P. Ltd. , reported as (1986) 60 Company Cases 229 (232 ). ( 31 ) IN lto, New Delhi v. OL, National Conduits (P) Ltd. . reported as (1981 )51 Com. Section 537 is really complimentary to Section 442 and not to Section446 of the Companies Act. He has cited in support the decision in Naresh Fabs v. Gudiya Exports P. Ltd. , reported as (1986) 60 Company Cases 229 (232 ). ( 31 ) IN lto, New Delhi v. OL, National Conduits (P) Ltd. . reported as (1981 )51 Com. Cases 174 (178), a D. B. decision supports his argument that right from thedate of presentation of a petition for winding-up the Court s protective arm isthrown on all transactions so that private individuals may not take undue advantage of the situation and thus leave the husk of the Company at the time when theorder for winding-up comes to be passed. In this connection, Mr. Nayyar has reliedupon the cases of Maharaj Singh v. State of Uttar Pradesh and Ors. , reported as AIR1976 SC 2602; Supdt. and Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja and Ors. , reported as AIR 1980 SC 52 (54); The Fruit and Vegetable Merdlants Union v. The Delhi Improvement Trust, reported as AIR 1957 SC 344 (para 19); andrashtriya Mill Mazdoor Sangh (supra ). ( 32 ) PROPERTY is actually transferred by execution of the sale deed andregistration thereof (if its value exceeds Rs. 100. 00) under Section 69 of the Transferof Properties Act as has been held by the Hon ble Supreme Court in Narandas Karsondas (supra ). Mr. Nayar referred to Sections 125, 391, 446, 453 (l) (a) of thecompanies Act to butteress his arguments that the secured creditors are not outsidethe winding-up altogether. He has further submitted that assuming a scheme ofarrangement was to be sanctioned by the Court with a view to revive the Company,all classes of creditors including the secured creditors would be bound by the saidscheme of arrangement. The test as to whether a particular legislation is a generallaw or a special law, will depend on the intention of the legislature which in theabsence of any specific provision can be inferred from the facts and surroundingcircumstances of a case such as the present case. It is contended that a law whichis special law for protecting the rights of DFC qua the Company giving it specialpowers will become general law once the Company goes into liquidation. Mr. Nayar has placed reliance in this behalf on L. I. C. v. Asia lidyog P. Ltd. and Ors. It is contended that a law whichis special law for protecting the rights of DFC qua the Company giving it specialpowers will become general law once the Company goes into liquidation. Mr. Nayar has placed reliance in this behalf on L. I. C. v. Asia lidyog P. Ltd. and Ors. (supra ). In the case of Jaya singh Dnyanu Mhoprekar and Anr. v. Krishna Babajipatilandanr. , reported as AIR 1985 SC 1646 , the Hon ble Supreme Court hadobserved that"mortgage is at par with the attachment of the property". In the matter of Ovation International (India) P. Ltd. Grey Steel Casting and finishing Co. P. Ltd. v. Advderts (Private) Ltd. and Anr, reported as 39 Company Cases 595, wherein it was observedthat even if the properties are attached before the winding-up of the Company, thedecree could not be executed without the permission of the Company Court undersection 446 of the Companies Act. Mr. Nayar pointed out that the ratio of S. V. Kondaskar of v. VM. Deshpandey, ITO, 42 Company Cases 168 (181) (SC), hasbeen followed in the cases of Income Tax Officer, Emakulam v. OL, reported as 52com. Cases 157; Income Tax Officer Emakulam v. OL, Catholic Bank of India Ltd. (In Liqn.), 52corn. Cases 164; Income-tax Officer, New Delhi v. Narula Finance P. Ltd. , 48 Corn. Cases 720; of Golcha Properties Pvt. Ltd. v. Income-tax Officer, Jaipur and Ors. , 44corn. Cases 144; Baroda Board and Paper Mills Ltd. (In Liqn.) v. ITO, Ahmedabadand Ors. , 46 Com. Cases 25, ILR 1974 (Vol. 1) Delhi 535, Sales Tax Officer Petlad v. Rajratna Naranbhai Mills Co. Ltd. and Anr. , 44 Corn. Cases 65; and ITO, Emakulamv. OL, Swaraj Motors (P) Ltd. , 48 Com. Cases 11, in support of his contention thatall special legislations authorising exercise of Civil Court s power become generallaw once the company goes into liquidation. Income tax dues do not enjoypreferential rights inspite of specific provisions contained therein and they are tobe paid as per Section 530 (1 ) (a) of the Companies Act. Cases 11, in support of his contention thatall special legislations authorising exercise of Civil Court s power become generallaw once the company goes into liquidation. Income tax dues do not enjoypreferential rights inspite of specific provisions contained therein and they are tobe paid as per Section 530 (1 ) (a) of the Companies Act. ( 33 ) THUS according to the submissions of Official Liquidator, once thecompany is under provisional liquidation or liquidation, then in the event of anyconflict occurring between those provisions of the Companies Act and the saidspecial law, the provisions of the Companies Act relating to winding-up and allconsequential provisions become special law and would override the provisions ofthe said special laws to the extent those are inconsistent with the provisions of thecompanies Act. Taking this view in the case of ITO, Ernakulam v. OL, it was heldthat even Income Tax Act would be deemed to have become general law on thecompany going into liquidation and the provisions of Companies Act will prevailand would be deemed to be the special law. ( 34 ) IN case, there are two acts, each having a non-obstante clause, then thesafer course will be to presume that the legislature intended the latter act to prevailin case there arose any conflict in the provisions of the two Acts and such conflictcould not be resolved by construing the provisions of two Acts harmoniously. Thelegislature in the present case was aware of the earlier Act, i. e. , State Financialcorporation Act, while enacting the non-obstante clause such as Sub-section529-A of the Companies Act, it should beassumed that the legislature did not intendthe provisions of Section 529-A of the Companies Act to be ignored by the Financialcorporation as a new category of creditor ranking pan passu with secured creditorshad been created. ( 35 ) MR. Nayar s next contention was that DFC being an instrumentality ofstate, reasonableness in a conduct is necessary and guidelines were also laid downby the Hon ble Supreme Court for exercising powers under Section 29 of the Statefinancial Corporation Act, 1951 in the case of Mahesh Chandra v. Regional Manager, U. P. financial Corporation and Ors. , reported as JT 1992 (2) SC 326. It wassubmitted that the conduct of DFC had not been reasonable inasmuch as it ignoredthe injunction of this Court and the sale was also not for maximum price that couldbe fetched. , reported as JT 1992 (2) SC 326. It wassubmitted that the conduct of DFC had not been reasonable inasmuch as it ignoredthe injunction of this Court and the sale was also not for maximum price that couldbe fetched. ( 36 ) IN the caseo of M. K. Ranganathan and Anr. v. Government of Madras and Ors. ,reported as AIR 1955 SC 604 , the Hon ble Supreme Court came to its conclusion asunder: "it is a legitimate rule of construction to construe words in an Act ofparliament with reference to words found in immediate connection withtime. It is also a well-recognised rule of construction that the legislature doesnot intend to make a substantial alteration in the law beyond that it explicitlydeclares either in express words or by clear implication and that the generalwords of the Act are not to be so construed as to alter the previous policy ofthe law, unless no sense or meaning can be applied to those wordsconsistently with the intention of preserving the existing policy untouched. Held therefore, that having regard to the context in which the words "anysale held without leave of the Court of any of the properties" added insection 232 (1) by the amending Act XXII of 1936 have been used in juxtaposition with "any attachment, distress or execution put into force withouleave of the Court against the estate or effects" it would be a legitimateconstruction to be put upon them that they refer only to sales held throughthe intervention of the Court and not to sales effected by the secured creditoroutside the winding-up and without the intervention of the Court, and thatthe amendment was not intended to bring within the sweep of the generalwords sales effected by the secured creditor outside the winding-up. Held accordingly that in the present case the sale effected by respondent No. 2 as the Receiver of the trustees of the debenture holders in July, 1954 wasvalid and binding on all parties concerned and could not be challenged asit was sought to be done by the Official Receiver. " ( 37 ) THE ruling in the case of Ranganathan (supra) was rendered in the lightof the provisions as they existed in Section 232 of the Indian Companies Act, 1913,which read as under: "232. " ( 37 ) THE ruling in the case of Ranganathan (supra) was rendered in the lightof the provisions as they existed in Section 232 of the Indian Companies Act, 1913,which read as under: "232. (1) Where any Company is being wound-up by or subject to thesupervision of the Court, any attachment, distress or execution put in forcewithout leave of the Court against the estate or effects or any sale heldwithout leave of the Court of any of the properties of the Company after thecommencement of the winding-up shall be void. " ( 38 ) EVEN though the same words appear in Section 537 (1) of the Companiesact, 1956, a very material change appears to have been introduced by splitting thesection into two Clauses, thus doing away with the juxta-position of the expressionin Sub-clause (a) from those in Sub-clause (b ). Section 537 (1) of the Companies Act,1956 is reproduced as under: "537. (1) Where any Company is being wound-up by or subject to thesupervision of the Court- (a) any attachment, distress or execution put in force, without leave of thecourt, against the estate or effects of the Company, after the commencement of the winding-up; or (b) any sale held, without leave of the Court, or any of the properties oreffects of the Company after such commencement;shall be void. "( 39 ) I had an occasion to examine the position of law under Section 232 (1) ofthe Indian Companies Act, 1913 and that prevailing under Section 537 (1) of thecompanies Act, 1956 in the case of The Peerless General Finance and Investment Co. Limited v. Majestic Apparels Pvt. Ltd. , reported as 1995 (34) DRJ 178 =59 (1995)DLT 238, wherein I had after examining the reasons given by the Hon be Supremecourt in M. K. Ranganathan s case for excluding the secured creditors from thepurview of Section 232 (1) found that it was so on account of the juxta-position ofthe words appearing therein. In 1956 Act, the legislature split those very words intodifferent Clauses whereby the sales, etc. were put into Clause (b) while attachmentwas put under Clause (a ). Therefore, the words in Clause (a) cannot be said to bejuxta-posed with Clause (b ). Therefore, in my opinion, there was a definite purposebehind the change introduced in Section 537 of the present Act from Section 232 ofthe earlier Act. were put into Clause (b) while attachmentwas put under Clause (a ). Therefore, the words in Clause (a) cannot be said to bejuxta-posed with Clause (b ). Therefore, in my opinion, there was a definite purposebehind the change introduced in Section 537 of the present Act from Section 232 ofthe earlier Act. ( 40 ) IN the case of ICICI (supra), the facts were different. The propositionquoted hereunder and a perusal of judgment would show that proposition at No. (iii) as also others were conceded by the parties which included that what was laiddown in M. K. Ranganathan s case under Section 232 of the Indian Companies Act,1913 continued to apply to the interpretation of Section 537 of the Companies Actnotwithstanding the aforementioned change in the section. The relevant extract isreproduced hereunder: " (I) A Winding-up Court has jurisdiction, inter-alia, to entertain or dispose of any suit or proceeding by or against the Company, even if suchsuit or proceeding had been instituted before an order for winding-uphad been made. This apart, the Winding-up Court has jurisdiction totransfer such a suit or proceeding to itself and dispose of the same. These follow from Sub-sections (2) and (3) of Section 446. (ii) When a winding-up order has been made or the Official Liquid a tor hasbeen appointed as provisional liquidator, no suit or other legal proceeding, even if pending at the date of the winding-up order, canproceed against the Company except by leave of the Company Courtvide Sub-section (1) of Section 446. (iii) Any sale held, even without the leave of the Winding-up Courtpursuant to order of a Civil Court on it being approached by a securedcreditor to realise its debt will not ipso facto be void, in view of theholding in Ranganathan s case that Sections 537, dealing with voidness of sale, operates when the sale is pursuant to attachment ofcompany Court. This, however, would be the position where acompany has not been wound-up, but is in the process of beingwound-up. This, however, would be the position where acompany has not been wound-up, but is in the process of beingwound-up. " ( 41 ) IN the case of lcici (supra) also, the real bone of contention before thecourt was as to whether (1) leave of the Winding-up Court should be granted to asecured creditor to proceed in a suit after an order of winding-up has been made,and (2) when should a Winding-up Court transfer to itself any suit or proceedingby or against the Company during the pendency of the winding-up proceedings. This is not the controversy in the present case. The Hon ble Supreme Court, afternoticing the desirability of protecting the interests of secured creditors and topreserve the integrity of secured creditor, as also the other secured creditors andthe need to protect the Company from unnecessary litigation and costs, had laiddown as under: "we are, therefore, of the view that the approach to be adopted in this regardby the Company Court does not deserve to be put in a straight jacketformula. The discretion to be exercised in this regard has to depend on thefacts and circumstances of each case. While exercising this power we haveno doubt that the Company Court would also bear in mind the rationalebehind the enactment of Recovery of Debts Due to the Banks and Financialinstitutions Act, 1993, to which reference has been made above. We make thesame observation regarding the terms which a Company Court should liketo impose while granting leave. It need not be stated that the terms to beimposed have to be reasonable, which would, or course, vary from case tocase. According to us, such an approach, would maintain the integrity of thatsecured creditor who had approached the Civil Court or desires to do so,and would take care of the interest of other secured creditors aswell whichthe Company Court is duty bound to do. The Company Court shall alsoapprise itself about the fact whether dues of workmen are outstanding; if so,extent of the same. It would be seen whether after the assets of the Companyare allowed to be used to satisfy the debt of the secured creditor, would bepossible to satisfy the workmen s dues pari passu. " ( 42 ) MR. The Company Court shall alsoapprise itself about the fact whether dues of workmen are outstanding; if so,extent of the same. It would be seen whether after the assets of the Companyare allowed to be used to satisfy the debt of the secured creditor, would bepossible to satisfy the workmen s dues pari passu. " ( 42 ) MR. Nayar pointed out that since the matter was based on both the partiesconceding broad propositions of law including at (iii) above, in terms of the ratioof the Hon ble Supreme Court s judgment in the case of Municipal Corporation of Delhi v. Gurnam Kaur, reported as AIR 1989 SC 38 , it would not constitute aprecedent for the reason that the propositions were conceded by both the parties. Apart from not being in full agreement with Mr. Nayar, I do not consider itnecessary to go into this question in this case. ( 43 ) IN my opinion, any sale which is in violation of the injunction order of thecourt, which in the present case was still subsisting when the offer was received andaccepted by DFC, can not be clothed with ligitimacy or validity. This aspect of thecase cannot be lost sight of. Prior to the receipt of the offer, the DFC admittedlyacquired the same right to dispose of the property as the owner of the property hadand if the owner had been injuncted from selling the property, DFC could notacquire a better right to sell which would be contrary to the injunction of the Court. As already noticed above, in the present case, even prior to the status-quo orderdated 19. 10. 1992, there existed an injunction order which was passed on 4. 8. 1992long before the receipt of the offer of the successful bidder and its acceptance. Therefore, the acceptance of offer was in violation of the injunction order dated4. 8. 1992. Another reason for not upholding the sale is that the price obtained wasalso not adequate as noticed hereinabove. It is for these reasons also, apart fromothers, that this sale cannot be upheld notwithstanding the plea of the purchaserthat he is a bonafide purchaser for valuable consideration and without notice. ( 44 ) IN the course of the arguments Mr. 1992. Another reason for not upholding the sale is that the price obtained wasalso not adequate as noticed hereinabove. It is for these reasons also, apart fromothers, that this sale cannot be upheld notwithstanding the plea of the purchaserthat he is a bonafide purchaser for valuable consideration and without notice. ( 44 ) IN the course of the arguments Mr. Swatanter Kumar made a submissionthat in case the Court considers that the provisions of Sections 537,441,442 of thecompanies Act are the special law and that the provisions of the Financialcorporation Act would be deemed to be the general law in cases of Companiesunderwinding-up then he prays that the present case is a fitcase where leave shouldbe granted by the Court. I would be inclined to accept this position because thereis no bar on the powers of the Court to grant such leave even ex-post facto and thatno provision has been brought to my notice whereby the Court cannot grant leaveeven if it is satisfied that the sale is bonafide and that the optimum price has beenobtained by the Financial Corporation. Obtaining of optimum/maximum price isin the interest of all including DFC. I, therefore, hold that this Court has power togrant leave to sell ex-post facto provided the sale is bonafide, legally valid andmaximum price has been obtained. In this case, I am not satisfied with the priceoffered and cannot accept that it was the maximum price for the simple reason thatwhile these arguments were in progress. I decided another application where I hadsanctioned the sale of the second unit of this very Company without any plant ormachinery or movables that is the plot and the superstructure only for Rs. 43 lakhswhereas in the present case the price of Rs. 28 lakhs offered was not only for anidentical plot together with the superstructure but also with the plant and machinery installed therein. This clearly shows that the optimum price has not beenobtained by the DFC and for that reason I am not inclined to grant leave to sell theproperty ex-post facto. ( 45 ) THE net result is- that the sale affected by DFC for inadequateconsideration and contrary to the subsisting injunction order of the Court andwhereby the possession of the property was delivered after the order of appointment of die provisional liquidator is not approved and is set aside. ( 45 ) THE net result is- that the sale affected by DFC for inadequateconsideration and contrary to the subsisting injunction order of the Court andwhereby the possession of the property was delivered after the order of appointment of die provisional liquidator is not approved and is set aside. The DFC isgranted leave to auction the property afresh by associating the Official Liquidatorwith settlement of proclamation of auction and the auction. Both the parties wouldbe at liberty to scout for suitable bidders. The proclamation containing terms of saleshall be subject to the approval of the Company Judge. The DFC should take stepsto recover possession of the property delivered. Rs. 28. 5 lakhs shall be fixed as thereserve price. However, the highest bidder at the sale by DFC is granted liberty tojoin in the future auction and bid for the same property. The sale shall be subject toconfirmation by the Company Judge. In the circumstances of the case, the partiesare left to bear their own costs.