J. K. MEHRA, J. ( 1 ) IN this case the Official Liquidator haschallenged the sale of certain properties of the company in respectwhereof Official Liquidator had been appointed as the Provisionalliquidator, purported to have been affected by Delhi Financialcorporation 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 controversyis pending decision by the Hon ble Supreme Court and I should awaitthe outcome thereof. Now, counsels have pointed out that thehon ble Supreme Court has since decided the matter in the case ofindustrial Credit and Investment Corporation of India Ltd. Vs. M/s. Srinivas Agencies and Ors. . reported as 1996 (3) Supreme 400 ). Mr. Nayar, counsel for the Official Liquidator, concedes that thecontroversy before the Hon ble Supreme Court was not identicalwith the questions arising in the present case as would appear fromthe discussion appearing hereinafter. ( 3 ) BRIEFLY stating the facts of the case are as under :-The Company "disco Electronics Ltd. " (hereinafter referredto as "disco") had created a mortgage in favour of thedelhi Financial Corporation to secure loan facilitiesobtained by it on 20-1-1986. On 4/7-12-1990, thedfc on account of unsatisfactory operation and thedefaults committed by the company recalled the loan. This notice was followed by another notice of 2 9/10/1991 threatening to take possession of theunit at premises No. A-83, Okhia Industrial Area,phase-11, New Delhi and the machinery installed ata-84 Okhia Industrial Area, Phase-11, New Delhi. Afterthe DFC had resumed possession under Section 29 ofthe State Financial Corporation Act, the DISCOapproached the DFC with the proposal that it shouldcarry out the sale of the said property and in fact produced an intending purchaser namely M/s. Shivaliktraders for settling dues of the Corporation, but despitethe Corporation having agreed to accommodate DISCOthe said purchaser failed to honour its commitments asa consequence whereof possession of the said property No. A-83 Okhia Industrial Area, Phase II together with themachinery lying at A-84 Okhia Industrial Phase-11 wastaken over by the Corporation on 23-2-1992. DISCOhad undertaken to retain the possession for and onbehalf of the DFC. In other words, DISCO continuedto be in possession, but only as custodian on behalfof the DFC which means that DISCO continued to holdthe property though as agent of the DFC and for andon its behalf. DISCOhad undertaken to retain the possession for and onbehalf of the DFC. In other words, DISCO continuedto be in possession, but only as custodian on behalfof the DFC which means that DISCO continued to holdthe property though as agent of the DFC and for andon its behalf. The said properties were advertised forsafe by the DFC on 4-6-1992. iiid llic sul. c wus conducted in the office of the DFC on 22-6-1992 whenthe highest bid of Rs. 18 lakhs was received. Thedfc called upon DISCO to produce a higher bid ifthey wanted to do so. Thereafter, one Mr. Vinod Guptamade an offer of Rs. 20 lakhs. However, this bidderaftersome time withdrew his offer in view of the DFChaving received an offer of Rs. 28. 5 lakh s on 23-9-1992whieh offer was accepted by the DFC. ( 4 ) CANARA Bank claimed to. have a charge on the moveableslying stored at A-83 Okhia Industrial Area, the DFC called uponthe Canara Bank to lift the stock as it wanted to hand over thevacant possession of the premises to the successful bidder. ( 5 ) WHILE all this was going on, a petition for winding up ofdisco was filed on 3/03/1992 which was returned for removal of office objection and was refiled on 26/03/1992 i. e. ,before the sale of the property and it came up for orders on 2 7/03/1992. Even before passing of the order for admission,the Court had passed an order on 4-8-1992 (before the offer ofimpugned sale was received on 23-9-1992) restraining DISCO fromdisposing of in any manner any of its assets or making any paymentto any creditor till further orders. The winding up petition wasadmitted vide orders dated 29-9-1992. On the same day, theofficial Liquidator attached to this Court was appointed as a Provisional Liquidator of the company with the direction to forthwithtake over the assets and records of the company. Thereafter , on 19/10/1992, there was a specific order of status-quo withregard to possession of property No. A-84 Okhia Industrial Area,phase-11, New Delhi. Further, vide order dated 5/11/1992 the specific injunction with regard to possession of the saidproperty and for removing any finished and semi finished goods,material, raw material etc. from the said premises has been passed. Thereafter , on 19/10/1992, there was a specific order of status-quo withregard to possession of property No. A-84 Okhia Industrial Area,phase-11, New Delhi. Further, vide order dated 5/11/1992 the specific injunction with regard to possession of the saidproperty and for removing any finished and semi finished goods,material, raw material etc. from the said premises has been passed. ( 6 ) ACCORDING to the DFC, they had already issued final noticeon 24-7-1992 before the admission of the winding up petition andappointment of the Provisional Liquidator and even the offer of thesuccessful bidder had been received on 23-9-1992 which was alsoprior to the appointment of the Provisional Liquidator. This was. however, subsequent to the injunction order dated 4-8-1992. Counsel for the DFC states that in fact, after admission of thewinding up petition and appointment of the Provisional Liquidator,the DFC proceeded to deliver only the possession to the successfulbidder on 16-10-1992. As such the order of 19th October, 1992had abs absolutely no effect on the prior act of handing over the possession,howeverno explanation has been made available for ignoringthe prior injuction order passed by Court on 4-8-1992. Itwas also contended by Shri 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, theprovisions thereof would over-ride the provisions of the Companiesact by virtue of the provisions contained in Section 46b of thestate Financial Corporations Act, which reads as under :- 46b. Effect of Act on other laws.-The provisions of thisact and of any rules or orders made thereunder shallhave effect notwithstanding anything inconsistent therewith contained in any other law or the time being inforce or in the memorandum or articles of associationof an industrial concern or in any other instrumenthaving effect by virtue of any law other than this Act,but save as aforesaid, the provisions of this Act shallbe in addition to, and not in derogation of, any otherlaw for the time being applicable to an industrial concern. " HE had further submitted that the State Financial Corporations Act. is special law, vis-a-vis the Companies Act which is general lawand, therefore, its provisions will prevail over Companies Act,1956. " HE had further submitted that the State Financial Corporations Act. is special law, vis-a-vis the Companies Act which is general lawand, therefore, its provisions will prevail over Companies Act,1956. He had also contended that once possession is taken overunder Section 29 of the State Financial Corporation Act, the DFCis deemed to have acquired the same right to dispose of/sell thesaid property as the owner and that the owner is left with no rightexcept the equity off redemption to redeem theproperty by satisfying the claim of the DFC. But no satisfactory answer was forthcoming to the question that if DISCO by virtue of an injunction isunable to sell, could DFC acquire rights superior to those of theowner to sell in disregard to the order of injunction. ( 7 ) MR. Nayar appearing for the Official Liquidator, hasstrongly challenged this position and has contended that once a company goes into liquidation or a Provisional Liquidator is appointed,the special provisions governing the rights of the parties subsequentto such liquidation or the. provisional liquidation would prevail asspecial law and will not be deemed to be the general law and thatsuch order would relate back to the date of presentation of thewinding up petition in terms of the provisions of Sections 537 and441 (2) of the Companies Act, ( 8 ) MR. Mukul Rohtagi, appearing for the purchaser, hadargued mainly that his client is a bonafide purchaser, for valuableconsideration without notice of any defect in title, and has acquiredthe property as absolute owner. He has further contended that thepurchaser s bid was the highest and the maximum that could beobtained under the circumstances and that the purchaser had offeredadequate price. ( 9 ) BOTH sides and also the purchaser had addressed lengthyarguments and have cited various authorities in support of theirrespective contentions. ( 10 ) SOME of the questions that fall for consideration in thiscase are :- (A) Is presentation of the winding up petition, without theconsent of the Delhi Financial Corporation after takingover by it of the possession permissible and competentin. law in view of the provisions contained in Section32e of the State Financial Corporations Act ? (B) What is the effect of amendment to the Companiesact, which is subsequent to the enactment of Statefinancial Corporation Act with particular reference tosections 529-A, 446 (2), each of which contains a non-obstante clause read with proviso to Sections 529, 537. law in view of the provisions contained in Section32e of the State Financial Corporations Act ? (B) What is the effect of amendment to the Companiesact, which is subsequent to the enactment of Statefinancial Corporation Act with particular reference tosections 529-A, 446 (2), each of which contains a non-obstante clause read with proviso to Sections 529, 537. and 441 (2) of the Companies Act in the light of theprovisions of Sections 29 and 46-B of State Financialcorporation Act ? (C) If the provisions of Section 537 of the Companies Actare applicable, can in the circumstances of this case. leave to sell be granted to the D. F. C. ex-post facto ? Ifso, is the Company Court competent not to accept theoffer on the plea that the price offered is not adequate ? ( 11 ) ON the question of non-maintainability or incompetence ofthe winding up petition if filed without the consent of the Delhifinancial Corporation as per Section 32e of the State Financialcorporation Act, I am unable to accept the contention of Delhifinancial Corporation, as in fact, no take over of Management ofthe Company was ever effected. Take over of Management is quitedistinct from take over of possession for the purpose of sale of establishment. In the former case action is resorted to with a view tonurse and reliabilitate teh establishment by providing better managementwhich is not the position in the latter case. in the present caseeven 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 record of any take over of the Management. This positionis well settled and there cannot be any dispute that take over ofmanagement of an undertaking is quite distinct from taking over ofits assets for the purpose of sale thereof for satisfaction of the duesof the State Financial Corporation. ( 12 ) MR. Swatanter Kumar contended that the Corporation hadalong with the possession of the establishment taken over the management of the industrial unit also. He has tried to contend that takeover of the management is synonymous with the possession. I amunable to accept this contention. ( 12 ) MR. Swatanter Kumar contended that the Corporation hadalong with the possession of the establishment taken over the management of the industrial unit also. He has tried to contend that takeover of the management is synonymous with the possession. I amunable to accept this contention. The expression "management"used in Section 32-B of the State Financial Corporation Act is in aspecial context and that is a special provision confined to the caseswhere only management is taken, over and the intention of the legislature appears to be to make a separate provision for the take overof the management by the Financial Corporation with a view to helpthe unit to revive by providing better Management and for that reasonit is desirable that the presentation of the winding up petition proceedings in respect thereof should not be allowed without the knowledgeand consent of the financial corporation. Nothing has been broughton record which shows that the Management was ever taken overfor such purpose. In fact the admitted position in. the present caseis that the physical possession of the properties in dispute was nevertaken over by the officers of the DFC, but was allowed to be continued with DISCO (in liquidation), although in its capacity ascustodian on. behalf of the DFC. Such a situation by no means canbe construed as taking over of the Management and the factualposition, as set out, could not be construed or read along with theprovision of Section 29 of the State Financial Corporation Act ashas been contended, by Mr. Swatanter Kumar. The object of thetwo sections is different. While the object of Section 29 of the Statefinancial Corporation Act is to provide a speedy mode of enforcingsecurity for realisation of the dues of the Financial Corporation, theobject of Section 32-G of the said Act appears to be that the takeover of Management of an industrial undertaking/unit is to nurse and, rehabilitate the undertaking/unit by providing it with efficientmanagement. The expression "management" has been the subjectmatter of repeated ordinances, Acts as well as judgments occurringboth under the Industrial Development Regulations Act as well asstate Financial Corporation Act and various ordinances when onlythe management of some of the sick mills or sick textiles undertakingsor some other industrial undertakings was taken over by the government. The expression "management" has been the subjectmatter of repeated ordinances, Acts as well as judgments occurringboth under the Industrial Development Regulations Act as well asstate Financial Corporation Act and various ordinances when onlythe management of some of the sick mills or sick textiles undertakingsor some other industrial undertakings was taken over by the government. If the Legislative intent was that the take over of the possession would include like over of the Management also, the Section29 of the said Act would have been worded differently and therewould have been no need to enact Section 32-G which provides fortake over of the Management only. The scope of the two sectionsis quite different and distinct and they deal with two different situations. Such a construction is in line with the rule of harmoniousconstruction of the said provisions of law. ( 13 ) THE counsel for Official Liquidator has also raised contention that the expression "management of Undertaking being takenover" and "its control", are quite separate and distinct and pointedout that the Hon ble Supreme Court had found these expressions tobe quite distinguishable. The meaning of two expressions take theircolour from the context in which those are used. In this context, areference be made to the case of The Life Insurance Corporation ofindia Vs. D. J. Bahadur and Ors. . reported as AIR 1980 SC 2181 (2)and the case of S. V. Khandoskar Vs. V. M. Deshpande, ITO,bombay and another reported as AIR 1972 SC 878 (3, ). In the lightof the above discussion, I do not find any merit in this contentionand reject this plea of DFC and hold that the provisions of Section32-E of the State Financial Corporations Act are not attracted. ( 14 ) SINCE all other points and contentions relate to the provisions of the State Financial Corporations Act 1951 and the rightsand obligations thereunder vis-a-vis the rights and obligations underfile Companies Act 1956 and the effect of the provisions of the twoacts, these can be dealt with together. ( 15 ) THE relevant provisions of the State Financial Corporationsact (except Section 46-B already quoted hereinabove) and the Companies Act are as under :- "29. Rights of Financial Corporation in case of default.- (1) Where any industrial concern, which is under aliability to the Financial Corporation under an agreement. ( 15 ) THE relevant provisions of the State Financial Corporationsact (except Section 46-B already quoted hereinabove) and the Companies Act are as under :- "29. Rights of Financial Corporation in case of default.- (1) Where any industrial concern, which is under aliability to the Financial Corporation under an agreement. makes any default in repayment of any loan oradvance or any instalment thereof or in meeting its obligations in relation to any guarantee given by the Corporation or otherwise fails to comply with the terms its agreement with the Financial Corporation, the Financial Corporation shall have the right to take over themanagement or possession or both of the industrial concern, as well as the right to transfer by way of lease or sale and realise the property pledged, mortgaged, hypothecated or assigned to the Financial Corporation. (2) Any transfer of property made by the Financial Corporation, in exercise of its powers under sub-section (1),shall vest in the transferee all rights in or to the propertytransferred as if the transfer had been. made by the ownerof the property. (3) The Financial Corporation shall have the same rightsand powers with respect to goods manufactured or produced wholly or partly from goods forming part of thesecurity held by it as it had with respect to the originalgoods. (4) Whether any action has been taken against an industrialconcern under the provisions of sub-section (1), all costs,charges and expenses which in the opinion of the Financial Corporation have been properly incurred by it a. sincidental thereto shall be recoverable from the industrialconcern and the money which is received by it shall, inthe absence of any contract to the contrary, be heldby it in trust to be applied firstly, in payment of suchcosts, charges and expenses and, secondly, in dischargeof the debt due to the Financial Corporation, and theresidue of the money so received shall be paid to theperson entitled thereto. (5) Where the Financial Corporation has taken any actionagainst an industrial concern under the provisions ofsub-section (1 ). the Financial Corporation shall bedeemed to be the owner of such concern, for the purposes of suits by or against the concern, and. shall sueand be sued in the name of the concern". (5) Where the Financial Corporation has taken any actionagainst an industrial concern under the provisions ofsub-section (1 ). the Financial Corporation shall bedeemed to be the owner of such concern, for the purposes of suits by or against the concern, and. shall sueand be sued in the name of the concern". ( 16 ) THE relevant provisions of the Companies Act with whichwe are concerned in the present case are quoted hereinbelow forready reference :- "section 441 (1) : Where, before the presentation of a petitionfor the winding up of a company by the Court, a resolution has been passed by the company for voluntary winding up the winding up of the company shall be deemedto have commenced at the time of the passing of theresolution, and unless the Court, on proof of fraud ormistake, thinks lit to direct otherwise, all proceedingstaken in the voluntary winding up shall be deemed tohave been validly taken. (2) In any other case, the winding up of a company by thecourt shall be deemed to commence at the time of the presentationof the petition for the winding up. Sec. 442 : Power of Court to stay or restrain proceedings againstcompany. At any time after the presentation of a winding up petition andbefore a winding up order has been made, the company, or anycreditor or contributory, may- (a) where any suit or proceedings against the company ispending in the Supreme Court or in any High Court,apply to the Court in which the suit or proceeding ispending for a stay of proceedings therein; and (b) where any suit or proceeding is pending against thecompany in any other Court, apply to the Court havingjurisdiction to wind up the company, to restrain furtherproceedings in the suit or proceeding :and the Court to which application is so made may stay or restrainthe proceedings accordingly, on such terms as it thinks fit. 446. Suits stayed on winding up order (1) When a winding up order has been made or the Official Liquidator has been appointed as provisional liquidator, no suit or otherlegal proceeding shall be commenced, or if pending at the date of thewinding up order, shall be proceeded with, against the company,except by leave of the Court and subject to such terms as the Courtmay impose. (2) The Court which is winding up the company shall, notwithstanding anything contained in any other law for the time being inforce, have jurisdiction 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 (includingclaims by or against any of its branches in India): (c) any application made under section 391 by or in respectof the company; (d) any question of priorities or any other question whatsoever, whether of law or fact, which may relate to or arisein course of the winding up of the company;whether such suit or proceeding has been instituted or as instituted, or such claim or question has arisen or arises orsuch application has been made or is made before orafter 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 ispending in any Court other than that in which the winding up of thecompany is proceeding may, notwithstanding anything contained inany other law for the 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 toany proceeding pending in appeal before the Supreme Court or ahigh Court. 529a. Over riding preferential payments. (1) Notwithstanding anything contained in any other provision ofthis Act or any other law for the time being in force, in the windingup of a company (emphasis supplied)- (a) workman s dues; and (b) debts due to secured creditors to the extent such debtrank under clause (c) of the proviso to sub-section (1)of section 529 pari pasu with 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) shall be paid in- full, unless the assets are insufficient tomeet them, in which case they shall abate in equal proportions. 537. Avoidance of certain attachments, executions, etc. , inwinding up by or subject to supervision of Court. shall be paid in priority to all other debts. (2) The debts payable under clause (a) and clause (b) of sub-section (1) shall be paid in- full, unless the assets are insufficient tomeet them, in which case they shall abate in equal proportions. 537. Avoidance of certain attachments, executions, etc. , inwinding up by or subject to supervision of Court. (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, withoutleave of the Court, against the estate or effects of thecompany, after the commencement of the winding up; or (b) any sale held without leave of the Court, of any of theproperties or effects of the company after such commencement;shall be void . (2) Nothing in this section applies to any proceedings for therecovery "of any tax or impost or any dues payable to the Government", ( 17 ) COUNSEL for the DFC lias cited various authorities wherein theprovisions of various Special Acts were considered vis-a-vis thecompanies Act and in the context of those provisions, Compnies Actwas held to be general law. He in support has relied upon Forwarding (0) Ltd. Vs. Port Trust of Vizakhapatnam and others reported as1987 (61) Corn. Cases 513. (4) In- this case, a single Judge of Bombay High Court has held that the steps taken by the Port Trust Authorities are special powers under the Port Trust Act which is a specialact viz-a-viz the Companies Act. Tn Comrade Bank Ltd. Vs. Jyotibala Desai reported as AIR 1962 (5) Calcutta 86 it has been heldthat the Banking Companies Act was a special Act viz-a-vizthe Companies Ad. The judgment in the case of Damji Valji Shahand another Vs. Life Insurance Corporation of India and others :reported as AIR 1966 SC 135 (6) was also cited in this connection. Thecourt in that case held that the Tribunal set up under LIC Actwould not loose jurisdiction to proceed if a company was to bewound up subsequent to the Life Insurance Corporation Act cominginto force. In Rashtriya Mill Mazdoor -Satigh Nagpur Vs. Modelmills Nagarpur reported as 1984 (3) (7) Company Law Journal 249,the Supreme Court had held that the provisions of. the Industrial Disputes Act snd the Bombay Industrial Regulations Act were specialprovisions viz-a-viz the provisions cf the Companies Act. In Rashtriya Mill Mazdoor -Satigh Nagpur Vs. Modelmills Nagarpur reported as 1984 (3) (7) Company Law Journal 249,the Supreme Court had held that the provisions of. the Industrial Disputes Act snd the Bombay Industrial Regulations Act were specialprovisions viz-a-viz the provisions cf the Companies Act. All thesedecisions were rendered in the light of and keeping in view the purpose of the provisions of different acts and in the light of the factsprevailing in each case. ( 18 ) IN fact, the Legislature, on realising the need to safeguard thewages of workers,. amended the Companies Act and enacted Section529-A, quoted hereinabove, as also amended Section 529 by providing provisos to that section, which read as under :- "provided that the security of every secured creditor shallbe deemed to be subject to a pari passu. charge in favourof the workmen to the extent of the workmen s portiontherein, and, where a secured creditor, instead of relinquishing his security and proving his debt, opts. torealise his security,- (A) the liquidator shall be entitled to represent the workmen and enforce such charge ; (B) any amount realised by the liquidator by way ofenforcement of such charge shall, be applied rateably for the discharge of workmen dues ; arid (C) so much of the debt due to such secured creditor ascould not be realised by him by virtue of the foregoing provisions of this proviso or the amount of theworkmen s portion in his security, whichever is lessshall rank pan passu with the workmen s dues for thepurposes of section 529-A. . . . " ( 19 ) COUNSEL for Official Liquidator apart from drawing distinctionsin the cases cited on behalf of the DFC has pointed out that the provisions of the State Financial Corporations Act are only complimentary and net in derrogation of the provisions of the Companies Act. In support of this argument, he has referred to the latter 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 scase (supra ). He has also cited a full Bench judgement in the caseof Income Tax Officer Vs. Official Liquidator (Kerala) reported as1985 Tax Law (8) Reporter 2143 = 1985 (58) Co. He has also reliedupon the observations of the Hon- ble Supreme Court in Khandoskar scase (supra ). He has also cited a full Bench judgement in the caseof Income Tax Officer Vs. Official Liquidator (Kerala) reported as1985 Tax Law (8) Reporter 2143 = 1985 (58) Co. Cases 590 in whichit was held that the assessment proceedings of Income-tax Act arespecial proceedings and would continue, but the recovery order wouldnot be passed as the recovery from company in liquidation is governed by the Companies Act. ( 20 ) ACCORDING to counsel for DFC, the provisions of Section 29of the State Financial Corporation Act are self contained. According to him, the expression deemed ownership of the concern" insection 29 (5) of the State Financial Corporation Act as well as theexpression "vesting" used in the sub-section (2) clearly indicates thatthe property passed to the Corporation in fact and in law includingthe vesting of title and possession. To construe the term "vesting",counsel has cited the case of The Vattichenikuru Village Panchayatvs. Nori Venkatarama Deekshithulu and Ors . , reported as Vol. 5 J. T. 1991 SC 1409) where the Hon ble Supreme Court had dealt withthe word "vesting" in paras 12 and 13 of the judgement. He hasalso cited Sections 18 and 19 of the Transfer of Property Act in support of his contention that the "vesting" includes both possession and title and vests a definite right in favour of the Corporation andthe corporation acquires all tl)e rights of the owner in the property inquestion. This, in my view, is an extreme argument and cannot beaccepted in toto as would appear from the discussion hereinafter. Ifind that the expression "vest" used irr sub-section (2) of Section 29of the State Financial Corporations Act is with reference to thevesting of property in the Transferee as if it had been transferred bythe owner himself. Thus this sub-section by itself does not vest theproperty absolutely in DFC, but confers on it same right as the ownerhas only for the limited purpose of transferring the property. Sub-section (5) of the said section deals with right to sue or defend anyaction and for that limited purpose only DFC would be deemed to bethe owner of the concern so that it can file or defend suits by oragainst the concern. Sub-section (5) of the said section deals with right to sue or defend anyaction and for that limited purpose only DFC would be deemed to bethe owner of the concern so that it can file or defend suits by oragainst the concern. It is also not disputed that under Section 29 (4) of the State Financial Corporations Act, the DFC cannot retainmore than its dues out of the sale proceeds. Thus the object ofsection 29 of State Financial Corporation Act is to make provisionfor State Financial Corporations to enforce without recourse to asuit, the securities only to recover their dues. In- other words, DFCis only a class of secured creditor who has acquired special rightsunder Section 29 to realise the security for recovery of its dues without approaching the Court. In all other respects, it continues toretain the character of a secured creditor. In the absence of windingup or commencement of winding-up proceedings, DFC would beperfectly within its rights to sell the security provided there is noinjunction by Court restraining sale thereof, and convey good marketable title as the owner itself could do. However, the position wouldbe different if the owner is under any disability such 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 couldnot acquire any right superior to those of the actual owner who atthe relevant time was under a disability to sell on account of injunction order of the Court. ( 21 ) MR. Kumar has laid lot of stress on the non-obstante provisionin the State Financial Corporations Act. I am unable to accept thecontention- that the provisions of State Financial Corporation Actoverride all the provisions of the Companies Act. A reference inthis behalf be ilade to the Full Bench decision of this Court in thecase of LIC Vs. Asia Udyog Pvt. Ltd. (10) reported as ILR 1982vol. 1 Delhi 582. I cannot accept the construction placed" by Mr. Swatanter Kumar on the provisions of Section 29 and 46b and 32eof the State Financial Corporation Act to mean- total ouster of jurisdiction of the Company Court and that its provisions will always andin all circumstances prevail over all provisions of Companies Act evenafter winding up or provisional winding up. I cannot accept the construction placed" by Mr. Swatanter Kumar on the provisions of Section 29 and 46b and 32eof the State Financial Corporation Act to mean- total ouster of jurisdiction of the Company Court and that its provisions will always andin all circumstances prevail over all provisions of Companies Act evenafter winding up or provisional winding up. The legislature in itsown wisdom amended the Companies Act and enacted provisionssuch as Section 529-A and provisos to Section 529 in order to protectthe wages of the workmen" not withstanding any law to the contrary,workmen s wages have now been put on par with the claims of securedcreditors and their claims now rank pari passu with the claims of. secured creditors. Thus a new category of secured creditors hasbeen crested whose interest are to be represented and taken care ofby the Official Liquidator. On principles of interpretation of statutes,mr. Kumar in support of his stand, had also cited the followingcases: ( 22 ) STATE of Bihar Vs. Hira Lal Kejriwal and Anr. , reported as AIR1960 SC (11) 47; S. Gumej Singh Vs. S. Partap Singh Kainon, reported as AIR 1960 SC (12) 122: D. Macropollo and Co. (P) Ltd. Vs. D. Macropollo and Co. (P) Ltd. Employees Union and Ors. reported asair (13) 1959 SC 1012 State of West Bengal Vs. Union of India,reported us AIR 1963 SC (14) 1241; M/s. Philips India Ltd. Vs. Labour Court Madras and Ors. reported as AIR (15) 1985 SC 1034;the Balasinor Nagrik Cooperative Bank Ltd. Vs. Bahubhai Shankerlal Panda ). and Ors. , reported as AIR (16) 1987 SC 849; Osmania University Teachers Association Vs. State of A. P. and Anr. , reported as AIR1987 SC (17) 2034; Captain Subhas Kumar Vs. The Principal Officermercantile Marine Deptt. , Madras reported as AIR 1991 (18) SC1632 and Kalawati Rai Vs. Soinyabai and Ors. , reported as AIR 1991sc 1581. (19) ( 23 ) A perusal of these decisions would support the view that eachcase has to be decided on its own- facts and no universal rule can besaid down unmindful of the facts of the case nor do those decisionssupport the extreme proposition advocated by Mr. Swatantra Kumar. ( 24 ) HE has also based his argument on the decision of this courtin the case of Aryavarta Plywood Ltd. (In Liquidation) Vs. Swatantra Kumar. ( 24 ) HE has also based his argument on the decision of this courtin the case of Aryavarta Plywood Ltd. (In Liquidation) Vs. Rajasthan State Industrial and Investments Corporation Ltd. and anotherreported as 1990 (1) Company Law Journal 222 (20) wherein it hasbeen held that the provisions of Section 32 (x) of the State Financialcorporation Act are applicable to only court proceedings and theprovisions of Sections 29 and 31 of the State Financial Corporationsact are quite independent. There can be no quarrel with this proposition of law. But, in that case. the learned single Judge hasfurther gone on to consider that for the purposes of Section 537 ofcompanies Act, the crucial date is the date of winding up order. This view is contrary to the express provisions of Section 537 of thecompanies Act which refers to the date of "commencement of winding up" and not winding up". The expression "winding up" ha. sbeen duly derived in Section 441. quoted herein above. 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 presentationof the petition for the winding up. For that reason, this part of thatjudgment appears to be per incurium and cannot constitute a precedent. ( 25 ) TILE counsel appearing on behalf of DFC; while replying tothe arguments of counsel for Official Liquidator has laid great emphasis on the point that the take over of the possession by DFC lawsearlier to the presentation of the winding up petition. Accordingto him, even the acceptance of the offer for impugned sale by DFCin its effort to sell the property had taken place prior to the passingof the provisional winding up order. It was only the question ofbeliveling the properly against payment which remained to be performed when the order for appointment of provisional liquidator wasmade. The possession was also delivered prior to the status-quoorder dated 19-10-1992. He has, however, not referred to theinjunction order dated 4-8-1992 which was very much inforce at the time when the offer for sale was received on 23-9-1992and accepted by DFC nor offered any explanation for their goingahead with sale in breach of and contrary to the said injunction order. The possession was also delivered prior to the status-quoorder dated 19-10-1992. He has, however, not referred to theinjunction order dated 4-8-1992 which was very much inforce at the time when the offer for sale was received on 23-9-1992and accepted by DFC nor offered any explanation for their goingahead with sale in breach of and contrary to the said injunction order. He stated that it was by way of abundant caution that they havecome forward to assist the Court on the question that their rightto realise the property remains unimpaired by provisional winding upand this Court will have no jurisdiction to interfere therein even ifhigher price could be fetched for that property. According to him,the sale stood concluded and that the execution and the registrationof the sale deed was a mere formality. ( 26 ) MR. Swatanter Kumar further contended that assuming that thecompany Court has jurisdiction to see that there is no fraudulentpreference or fraud of any kind involved it could grant leave/permission to sell ex post facto. He submits that the petitioners in thewinding up petition were colluding with the company and its directors and had intentionally not got issued any notice to DFC of thefiling of the company petition and submits that the fraud in fact isattributable to the petitioners and the company and not DFC. Hefurther submits that there cannot be any occasion for presentationfor leave to sell when the company is not gone into liquidation yet orprovisional liquidation. As such the intention of legislation was toenable such creditors to approach the court for leave ex post facto. Mr. Swatanter Kumar has also placed great emphasis on Section 32of the State Financial Corporation Act. For this reason also hestates that if at all it is held that the company court could lookinto such sale transaction the court should look into the bona fideconduct of the State Financial Corporation and grant leave ex postfacto and allow it to complete the sale. According to him, theprovisions of Sections 446 and 537 of the Companies Act areanalogous to one another. He has cited the case of Income Tax Officer Emakulamv. OL, Palai Central Bank Ltd. reported as 1985 (21) TLR 2143wherein it was held that the assessment proceedings are not legalproceedings. To the same effect under the Industrial Disputes Actis the judgment in Vadervu Suryanarayana Vs. Kocheriakota Venkatasubbarao and Anr. , reported as AIR 1951 Madras (22) 947. He has cited the case of Income Tax Officer Emakulamv. OL, Palai Central Bank Ltd. reported as 1985 (21) TLR 2143wherein it was held that the assessment proceedings are not legalproceedings. To the same effect under the Industrial Disputes Actis the judgment in Vadervu Suryanarayana Vs. Kocheriakota Venkatasubbarao and Anr. , reported as AIR 1951 Madras (22) 947. He hasalso relied up the cases of Pyarelal Vs N. D. M. C. (23) reported as air 1966 SC 135 and L. I. C. of India Vs. D. J. Bahadur and Ors. ,reported as AJR (24) 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 the DFC had given full opportunity to the company to secure a better offer but the company has failed to do soand that the offer at which the DFC has agreed to sell being Rs. 28. 50lakhs was the highest available and that is why the said offer wasaccepted. He thus contends that the DFC has acted fairly and in abonafide manner. ( 27 ) MR. Swatanler Klimar further contends that the DFC washaving statutory right and contractual power to enforce the mortgageunder Section 29 of the State Financial Corporation Act, the provisions of Section 537 of the Act would not be attracted in this case. ( 28 ) IN my view, in the taking over of the possession undersection 29 of the State Financial Corporation Act, the owner alwaysretains the right of ownership of the property does not pass on tothe financial corporation, but it is only for certain purposes of affecting recovery of its dues by the sale and to remove any impedimentsin their way that the statute by a deeming provision has granted tothe financial corporation powers of the owner for the limited purposeof realising the security, to convey good marketable title to thepurchaser, and to defend any legal action, but the property docsnot absolutely vest in it. In Thota China Subba Rao and others Vs. Mattapalli Raju and others reported as AIR (25) 1950 Federal Court1. Ganga Dhar Vs, Shankiii Lal and others reported as AIR 1958sc (26) 770. Narandas Karsendas Vs. In Thota China Subba Rao and others Vs. Mattapalli Raju and others reported as AIR (25) 1950 Federal Court1. Ganga Dhar Vs, Shankiii Lal and others reported as AIR 1958sc (26) 770. Narandas Karsendas Vs. S. A. Kanitam and anotherreported as AIR 1977 SC (27) 774, it lias been held that the right ofredemption subsists till the mortgaged property is actually transferredby execution of sale deed and its registration. Similarly when. thebook debts are hypothecated with the Bank, the hypothecation couldnot make the Bank the owner of the debt, and that the of has torecover the debts. Mr. Nayyar has contended that Section 537 hasto be read with Section 442 and has also contended that Section 537is totally independent of and not a section setting out the consequences of diseregard of Section 446. Section 537 is really complimentary to section 442 and not to Section 446 of the Companies Act. He has cited in support the decision in Naresh Fabsvs. Glidiya Exports P. Ltd. reported as (1986) 60 Company (28)Cases 229 (232 ). ( 29 ) IN Income Tax Officer New Delhi Vs. OL. , National (29) Conduits (P) Ltd. reported as (1981) 51 Com. Case 174 (178) a D. B. decision supportsiris argument that right from the date of presentation of a petitionfor winding up the court s protective arm is thrown on all transactionsso that private individuals may not take undue advantage of thesituation and thus leave the husk of the company at the time whenthe order for winding up comes to be passed. In this connection,mr. Nayvar has relied upon the cases of Maharaj Singh Vs. State ofuttar Pradesh and others reported as AIR 1976 SC (30) 2602, Supdt. and Remembrancer of Legal Affairs West Bengal Vs. Anil Kumarbhunja and others reported as (31) AIR 1980 SC 52 (54 ). The Fruitand Vegetable Merchants Union Vs. The Delhi Improvement Trustreported as AIR (32) 1957 SC 344, para 19) and Rashtriya Millmazdoor Sangh (supra) reported as (1984) 3 Com. L. Journal (33) 249. ( 30 ) PROPERTY is actually transferred by execution of the sale deedand registration thereof (if its value exceeds Rs. 100) under Section69 of the. Transfer of Properties Act. as has been held by the Hon blesupreme Court in Narandas Karsondas (supra) AIR 1977 SC 774 . Mr. L. Journal (33) 249. ( 30 ) PROPERTY is actually transferred by execution of the sale deedand registration thereof (if its value exceeds Rs. 100) under Section69 of the. Transfer of Properties Act. as has been held by the Hon blesupreme Court in Narandas Karsondas (supra) AIR 1977 SC 774 . Mr. Nayar referred to Section 125, 391, 446, 453 (1) (a) of thecompanies Act to butteress his arguments that the secured creditorsare not outside the winding up altogether. Hand has further submittedthat assuming a scheme of arrangement was to be sanctioned by thecourt with a view to revive the company, all classes of creditorsincluding the secured creditors would be bound by the said schemeof arrangement. The test as to whether a particular legislation is ageneral law or a special law. will depend on. the intention of thelegislature which in the absence of any specific provision can be inferred from the facts and surrounding circumstances of a case suchas the present case. It is contended that a law which is special lawfor protecting the rights of D. F. C. 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. Vs. Asiaudyog P. Ltd. and other (supra ). In the case of Jayasingh Dnyanumhoprekar and Anr. Vs. Krishna Babaji Patil and Anr. reported as AIR1985 SC 1646 (34), the Hon ble Supreme Court had observed that mortgage is at par with the attachment of the property. " In. thematter of Ovation International (India) P. Ltd Grey Steel Casting andfinishing Co. Pri. Ltd. Vs, Adverts (Private) Ltd. and another reported as 39 Company Cases 595 (35) wherein it was observed thateven if the properties are attached before the winding up of the company, the decree could not be executed without the permission ofthe Company Court under Section 446 of the Companies Act. Mr. Nayar pointed out that the ratio of S. V. Kondaskarvs. V. M. Deshpandey, ITO, 42 Company Cases 168 (181) (S. C.) (36)has been followed in the cases of Income Tax Officer, Emakulam Vs. OL reported as 52 Corn. Cases l 57 (37) ITO, Emakulam Vs. OL,catholic Bank of India Ltd. (In Liqn) 52 Corn. Cases (38) 164, Income-tax Officer, New Delhi Vs. Narula Finance P. Ltd. 48com. Cases (39) 720 Golcha Properties Pvt. Ltd. Vs. OL reported as 52 Corn. Cases l 57 (37) ITO, Emakulam Vs. OL,catholic Bank of India Ltd. (In Liqn) 52 Corn. Cases (38) 164, Income-tax Officer, New Delhi Vs. Narula Finance P. Ltd. 48com. Cases (39) 720 Golcha Properties Pvt. Ltd. Vs. Income-taxofficer, Jaipur and others (40) 44 Corn. Cases 144, Baroada Boardand Paper Mills Ltd. (In. Liwn) Vs. ITO. Ahmedabad and others46 Com. Cases (41) 25, ILR 1974 (Vol. 1) Delhi (42) 535. Sales Taxofficer Petlad Vs. Rajrathna Naranbhai Mills Co. Ltd. . and another (43) 44 Com. Cases 65, and ITO, Ernakulam Vs. OL, Swaraj Motors (P) Ltd. . 48 Com. Cases (44) 11, in support of his contention that allspecial legislations authorising exercise of Civil Court s powerbecome general law once the company goes into liquidation. Incometax dues do not enjoy preferential rights inspite of specific provisionscontained therein and they are to be paid as per Section 530 (1) (a)of the Companies Act. ( 31 ) THUS, according to the submissions of Official Liquidator,once the company as under provisional liquidation or liquidation,then in the event of any conflict occurring between those provisionsof the Companies Act and the said special law, the provisions ofthe Companies Act relating to winding up and all consequentialprovisions become special law and would override the provisions ofthe said Special Laws to the extent those are inconsistent with theprovisions of the Companies Act. Taking this view in the casesof Income Tax Officer Ernakulam Vs. OL, reported as 52 Com Cases (45) 156. it was held that even Income Tax Act would be deemed to havebecome general law on the company going into liquidation and theprovisions of Companies Act will prevail and would be deemed tobe the special law. ( 32 ) IN case, there are two acts, each having a non-obstanteclause, then the safer course will be to presume that the legislatureintended the latter act. to prevail in case there arose any conflict inthe provisions of the two Acts and such conflict could not be resolved by construing the provisions of two Acts harmoniously. ( 32 ) IN case, there are two acts, each having a non-obstanteclause, then the safer course will be to presume that the legislatureintended the latter act. to prevail in case there arose any conflict inthe provisions of the two Acts and such conflict could 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 Financial Corporation Act, while enacting the non-obstanteclause such as sub-section 529-A of the Companies Act, it shouldbe assumed that the legislature did not intend the provisions ofsection 529-A of the Companies Act to be ignored by the Financialcorporation as a new category of creditor ranking pari passu withsecured creditors had been created. ( 33 ) MR. Nayar s next contention was that D. F. C. being aninstrumentality of state, reasonableness in its conduct is necessaryand guidelines were also laid down by the Hon ble Supreme Courtfor exercising powers under Section 29 of the State Financial Corporation Act, 1951 in the case of Mahesh Chandra Vs. Regionalmanager, U. P. Financial Corporation and Ors. , reported as JT 1992 (2) SC 326 (46 ). It was submitted that the conduct of D. F. C. hadnot been reasonable inasmuch as it ignored the injunction of thiscourt and the sale was also not for maximum price that could befetched. ( 34 ) IN the case of M. K. Ranganathan and Anr. Vs. Governmentof Madras and Ors. , reported as AIR (47) 1955 SC 604, the Hon blesupreme Court came to its conclusion as under :- "it is a legitimate rule of construction to construe words inan Act of Parliament with reference to words found inimmediate connection with time. It is also a wellrecognized rule of construction that the legislature doesnot intend to make substantial alteration, in the lawbeyond what it explicitly declares either inexpress words or by clear implication and that thegeneral words of the Act are not to be so construed asto alter the previous policy of the law, unless no senseor meaning can be applied to those words consistentlywith the intention of preserving the existing policy untouched. Held therefore, that having regard to the context in whichthe words "any sale held without leave of thecourt of any of the properties" added in s. 232 (1) bythe amending Act XXII of 1936 have been used injuxtaposition with "any attachment, distress or execution put into force without leave of the Court againstthe estate or effects" it would be a legitimate construction to be put upon them that they refer only to salesheld through the intervention of the Court and not tosales effected by the secured creditor outside the winding up and without the intervention of the Court, andthat the amendment was not intended to bring withinthe sweep of the general words sales effected by thesecured creditor outside the winding up. Held accordingly that in the present case the sale effectedby respondent No. 2 as the receiver of the trustees ofthe debenture holders in July, 1954 was valid andbinding on all parties concerned and could not bechallenged as it was sought to be done by the Officialreceiver. "the ruling in the case of Ranganathan (supra) was rendered inthe light of the provisions as they existed in Section 232 of theindian Companies Act, 1913, which read as under :-"232. (1) Where any company is being wound up by orsubject to the supervision of the Court, any attachment, distress or execution put in force without leaveof the Court against the estate or effects or any saleheld without leave of the Court of any of the propertiesof the company after the commencement of the windingup shall be void. " ( 35 ) EVEN though the same words appear in Section 537 (1) ofthe Companies Act, 1956, a very. material change appears to havebeen introduced by splitting the section into two clauses, thusdoing away with the just position of the expression in 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 orsubject to the supervision of the Court-- (A) any attachment, distress or execution put in forcewithout leave of the Court, against the estate oreffects of the company, after the commencement ofthe winding up : or (B) any sale held, without leave of the Court, of anyof the properties or effects of the company after suchcommencement: shall be void. " ( 36 ) I had an occasion to examine the position of law undersection 232 (1) of the Indian Companies Act, 1913 and that prevailing under Section 537 (1) of the Companies Act, 1956 in thecase of the Peerless General Finance and Investment Co. Limited Vs. Majestic Apparels Pvt. Ltd. , reported as 1995 (34) DRJ 178 (48)wherein I had after examining the reasons given by the Hon blesupreme Court in M. K. Ranganathan s case for excluding thesecured creditors from the purview of Section 232 (1) found that itwas so on account of the juxtaposition of the words appearingtherein. In 1956 Act, the legislature split those very words intodifferent clauses whereby the sales etc. were put intoclause (b) while attachment was put under clause (a ). Therefore,the words in clause (a) cannot be said to be juxtaposed with clause (b ). Therefore, in my opinion, there was a definite purposebehind the change introduced in Section 537 of the present Act fromsection 232 of the earlier Act. ( 37 ) IN the case of ICICI (supra), the facts were different. Theproposition quoted hereunder and a perusal of judgment would showthat proposition at No. (iii) as also others were conceded by theparties which included that wliat was laid down in M. K. Ranganathan s case under Section 232 of the Indian Companies Act, 1913continued to apply to the interpretation of Section 537 of the Companies Act notwithstanding the aforementioned change in the sec-tion. The relevant extract is reproduced hereunder :- " (I) A winding-up court has jurisdiction, inter alia, to entertain or dispose of any suit or proceeding by or againstthe company, even if such suit or proceeding had beeninstituted before an order for winding-up had beenmade. This apart, the winding-up court has jurisdiction to transfer such a suit or proceeding to itself anddispose of the same. These follow from sub-sections (2) and (3) of Section 446. (II) When a winding-up order lias been made or the officialliquidator has been appointed as provisional liquidator,no suit or other legal proceeding, even if pending atthe date of the winding-up order, can proceed againstthe Company except by leave of the Company Courtvide sub-section (1) of Section 446. These follow from sub-sections (2) and (3) of Section 446. (II) When a winding-up order lias been made or the officialliquidator has been appointed as provisional liquidator,no suit or other legal proceeding, even if pending atthe date of the winding-up order, can proceed againstthe 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 court pursuant to order of a civil court on it beingapproached by a secured creditor to realise its debt willnot ipso facto be void, in view of the holding inranganathan s case that Section 537, dealing with voidness of sale, operates when the sale is pursuant toattachment of company court. This, however, wouldbe the position where a company has not been woundup, but is in the process of being wound-up. " ( 38 ) IN the case of ICICI (supra) also, the real bone of contention before the Court was as to whether (1) leave of the windingup Court should be granted to a secured creditor to proceed in. asuit after an order of winding up has been made, and (2) whenshould a winding up Court transfer to itself any suit or proceedingby or against the company during the pendency of the winding upproceedings. This is not the controversy in the present case. Thehon ble Supreme Court, after noticing the desirability of protectingthe interests of secured creditors and to preserve the integrity ofsecured creditor, as also the other secured creditors and the needto protect the Company from unnecessary litigation and costs, hadlaid down as under :- "we are, therefore, of the view that the approach to beadopted in this regard by the Company Court doesnot deserve to be put in a straight jacket formula. Thediscretion to be exercised in this regard has to dependon the facts and circumstances of each case. Whileexercising this power we have no doubt that the company court would also bear in mind the rationalebehind the enactment of Recovery of Debts Due to thebanks and Financial Institutions Act, 1993, to whichreference has been made above. We make the sameobservation regarding the terms which a company courtshould like to impose while granting leave. Itneed not be stated that the terms to beimposed have to be reasonable, which would, of course,vary from case to case. We make the sameobservation regarding the terms which a company courtshould like to impose while granting leave. Itneed not be stated that the terms to beimposed have to be reasonable, which would, of course,vary from case to case. According to us, such an approach, would maintain the integrity of that securedcreditor who had approached the civil court or desiresto do so, and would take care of the interest of othersecured creditors as well which the company court is dutybound to do. The company court shall also appriseitself about the fact whether dues of workmen are outstanding ; if so, extent of the same. If would be seenwhether after the assets of the company are allowed tobe used to satisfy the debt of the secured creditor, itwould be possible to satisfy the workmen s dues pan passu. " ( 39 ) MR. Nayar pointed out that since the matter was based onboth the parties conceding broad propositions of law including at (iii) above, in terms of the ratio of the Hon ble Supreme Court sjudgement in the case of Municipal Corporation of Delhi Vs. Gurnamkaur, reported as AIR 1989 SC (49) 38, it could not constitute aprecedent for the reason that the propositions were conceded by boththe parties. Apart from not being in full agreement with Mr. Nayar,i do not consider it necessary to go into this question in this case. ( 40 ) IN my opinion, any sale which in violation of the injunctionorder of the Court, which in the present case was still subsistingwhen the offer was received and accepted by DFC, can not be clothedwith ligitimacy or validity. This aspect of the case cannot be lostsight of. Prior to the receipt of the offer, the DFC admittedly acquiredthe same right to dispose of the property as the owner of the propertyhad and if the owner had been injuncted from, selling the property,dfc could not acquire a better right to sell which would be contraryto the injunction of the Court. As already noticed above, in thepresent case, even prior to the status-quo order dated 19-10-1992,there existed an injunction order which was passed on 4-8-1992 longbefore the receipt of the offer of the successful bidder and its acceptance. Therefore, the acceptance of offer was in volation of theinjunction order dated 4-8-1992. Another reason for not upholdingthe sale is that the price obtained was also not adequate as noticedhereinabove. Therefore, the acceptance of offer was in volation of theinjunction order dated 4-8-1992. Another reason for not upholdingthe sale is that the price obtained was also not adequate as noticedhereinabove. It is for these reasons also, apart from others, that thissale cannot be upheld notwithstanding the plea of the purchaser thathe is a bonafide purchaser for valuable consideration and withoutnotice. ( 41 ) IN the course of the arguments Mr. Swatanter Kumar madea submission that in case the court considers that the provisions ofsections 5. 37, 441, 442 of the Companies Act are the special lawand that the provisions of the Financial Corporation Act would bedeemed to be the general law in cases of companies under winding upthen he prays that the present case is a fit case where leave shouldbe granted by the Court. I would be inclined to accept this positionbecause there is no bar on the powers of the court to grant suchleave even ex-post facto and that no provision has been brought tomy notice whereby the court cannot grant leave even if it is satisfiedthat the sale is bonafide and that the optimum price has been obtained by the Financial Corporation. Obtaining of optimum/maximum price is in the interest of all including DFC. I, therefore,hold that this Court has power to grant leave to sell ex-post factoprovided the sale is bonafide, legally valid and maximum price hasbeen obtained. In this case, I am not satisfied with the price offeredand cannot accept that it was the maximum price for the simplereason that while these arguments were in progress, I decided anotherapplication where I had sanctioned the sale of the second unit of thisvery company without any plant or machinery or moveables that isthe plot and the superstructure only for Rs. 43 lakhs whereas in thspresent case the price of Rs. 28 lakhs offered was not only for anidentical plot together with the superstructure but also with the plantand machinery installed therein. This clearly shows that the optimum price has not been obtained by the DFC and for that reasoni am not inclined to grant leave to sell the property ex-post facto. 28 lakhs offered was not only for anidentical plot together with the superstructure but also with the plantand machinery installed therein. This clearly shows that the optimum price has not been obtained by the DFC and for that reasoni am not inclined to grant leave to sell the property ex-post facto. ( 42 ) THE net result is that the sale affected by DFC for inadequateconsideration and contrary to the subsisting injunction order of thecourt and whereby the possession of the property was deliveredafter the order of appointment of the provisional liquidator is notapproved and is set aside. The DFC is granted leave to auction theproperty afresh by associating the Official Liquidator with settlementof proclaimation of auction and the auction. Both the parties, wouldbe at liberty to, scout for suitable bidders. The proclaimation containing terms of sale shall be subject to the approval of the Companyjudge. The DFC should take steps to recover possession of theproperty delivered. Rs. 28. 5 lakhs shall be fixed as the reserveprice. However, the highest bidder at the sale by DFC is grantedliberty to join in the future auction and bid for the same property. The sale shall be subject to confirmation by the Company Judge. In the circumstances of the case, the parties are left to bear theirown costs.