MAHABIR INDUSTRIES Vs. H.M. DYEING LTD.

JUDGEMENT

(1.) The appeal impugns the order dated 28 th February, 2012 of the learned Company Judge dismissing Company Application No.362/2012 filed by the appellant. The said application was filed by the appellant in Company Petition No.159/2006 filed by ICICI Bank Ltd. for winding up of M/s H.M. Dyeing Ltd. and in which proceedings order of winding up had been made. Company Application No.362/2012 was filed to restrain sale of machinery and for release of the plant, machinery and building at the factory premises at Panipat, to the appellant.

(2.) It is the case of the appellant that a partnership firm in the name and style of the appellant was constituted in January, 1998 with Shri Anil Kumar Manik as one of the partners; that the said partnership firm, between the years 1998 and 2003, acquired and set-up the factory aforesaid at Panipat with financial assistance from Punjab National Bank; that on 10 th May, 2005 the partnership firm was dissolved and its assets including the factory premises, plant, machinery installed therein came to the share of Shri Anil Kumar Manik who is now the sole proprietor of the appellant. It is further the case of the appellant that the Company in liquidation was incorporated on 3 rd August, 2005 with authorized share capital of Rs 5 lacs only and of which the appellant contributed Rs 2 lac. It is yet further the case of the appellant that on 7 th September, 2005 a Memorandum of Understanding/Agreement was executed between the appellant and the Company in liquidation, whereunder the appellant agreed to sell and transfer all fixed assets including industrial plot at Sector 29, Part-II, HUDA, Panipat and the outstanding liabilities of the bankers Punjab National Bank and the machines etc. to the Company in liquidation.

(3.) The counsel for the appellant before us has also fairly admitted that the factory premises, plant, machinery sale whereof in liquidation proceedings of the Company is now sought to be restrained, since 7 th September, 2005, has been in possession of and in use of the Company in liquidation.