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2007 DIGILAW 2788 (ALL)

DENA BANK, KURLA, MUMBAI. v. OFFICIAL LIQUIDATOR

2007-11-20

H.L.GOKHALE, PANKAJ MITHAL

body2007
JUDGMENT Hon’ble H.L. Gokhale, CJ.—Heard Sri Ramesh Singh in support of this appeal and Sri Arnab Banerji appears for the respondent official liquidator. 2. The appellant is a nationalized Bank. It seeks to challenge the order passed by the learned Company Judge on 27th September, 2007 on an application filed by the official liquidator to set aside the sale of the factory and assets of the company situate at Nawabganj, Bareilly in favour of M/s. Cristina Vinimay Pvt. Ltd. 3. The short facts leading to the appeal is that one M/s. Dhandhaniya Brothers Pvt. Limited filed company petition No. 77 of 1999 for winding up of Khaitan Overseas and Finance Ltd., (shortly known as KOFL) and applied for appointment of a provisional liquidator. The appellant herein Dena Bank had moved for recovery of its dues in the Debt Recover Tribunal (in short DRT), Kolkata and the receiver was appointed. The Counsel appearing for the Dhandhaniya Brothers, Pvt. Limited did not press for appointment of provisional liquidator and in fact made a statement that he had no objection if the receiver appointed by the DRT proceeds for disposing of the assets of the Company. 4. It is the case of the appellant that the appellant proceeded with the matter in the DRT and part of these assets have been subsequently sold to M/s. Cristina Vinimay (P) Limited and an amount of Rs. 2.60 lakhs collected from the sale is lying with Dena Bank. The claim of Dena Bank is in the range of 40 crores. It has so transpired that thereafter the winding up order was passed on 15.10.2003 and the official liquidator has been appointed. The official liquidator moved an application bearing No. 13467 of 2007 leading to the impugned order and it was submitted that the sale had taken place without joining the official liquidator as the respondent. Nothing was shown on the point that the official liquidator was joined in proceeding before the DRT. Learned Single Judge relying upon the Rajasthan State Financial Corporation v. Official Liquidator, (2005) 8 SCC 190 came to the conclusion that the sale was bad and therefore directed that the recovery officer will have to advertise the sale afresh with the direction that he shall not proceed with the sale of assets in the meanwhile. 5. Being aggrieved by this order the present appeal has been filed. 6. 5. Being aggrieved by this order the present appeal has been filed. 6. Sri Ramesh Singh, learned Counsel for the appellant made various submissions. He contends that the Dena Bank proceeded before the DRT after seeking permission of the Company Judge and that the DRT is the competent Court. He relied upon the judgment reported in JT 2004 (4) SC 411, Allahabad Bank v. Canara Bank and another. The facts however, remains that the first order passed by the learned Company Judge was without any representation of the company and the order passed by the DRT was undoubtedly without joining the official liquidator. 7. Sri Singh has made two submissions. The first submission made is with regard to application moved being beyond time under Article 134 of the Limitation Act relying upon the judgment of the Apex Court in Ratan Bapu Patil v. Dodhu, AIR 2005 SC 1500 . The submission of Mr. Banerji on the other hand is that this article will not apply to this case. The other submission made by Sri Singh is that application of KOFL is not acceptable as it is bad for misjoinder of the parties and at the relevant time the order of the amalgamation of the KHSL into KOFL has already been recalled. These grounds were not raised before the learned Single Judge. Subsequently, Sri Singh seeks to withdraw this appeal with liberty to apply for review of this order before the learned Company Judge with the request that the amount which is lying with the Dena Bank may be permitted to be retained with the same bank. 8. The steps taken by the Dena Bank for recovery before the DRT throughout are bonafide. Learned Single Judge has also observed that the efforts of the Dena Bank to recover the dues are no doubt bonafide. This fact has also not been disputed by Sri Banerji. He has no objection if the amount lying with the Dena Bank continues to be retained by it subject to the orders to be passed by the Company Judge, inasmuch as, it is a nationalized Bank. This statement of Sri Banerji is recorded. The appeal is dismissed as withdrawn with liberty as above. ————