BASUMATI MAHAJAN Vs. FOREMOST INDUSTRIES INDIA LIMITED

JUDGEMENT

(1.) The above suit is for the recovery of possession of the suit property from the defendant Company who was a tenant in the premises.

(2.) The defendant Company has filed IA 4234/95 under Section 442 and 446(1) of the Companies Act read with Section 22 of the Sick Industrial Company (Special Provision) Act, 1985 for staying of proceedings in the suit until the plaintiff obtains leave of the Hon'ble Company Judge Bombay High Court and also consent from BIFR .

(3.) According to defendant Company M/s Nicco Corporation had filed a company petition No. 415/92 in the Bombay High Court for winding up the defendant Company. On 28.9.1983, the Company Judge, Bombay High Court appointed the official liquidator as Provisional liquidator under Section 446(1) of the Companies Act. The Petitioner in IA has stated as follows:- a) The Defendant most respectfully submits that prior to the company has become a sick unit as defined under the Sick Industrial Companies Act; in a Company Petition for winding up being Petition No. 415/92 initiated by M/s Nicco Corporation Ltd. against the Defendant Company, herein, the Hon'ble Company Judge of Hon'ble High Court of Judicature at Bombay having jurisdiction under the Companies Act, 1956, by order dated 28.9.1993 appointed an Official Liquidator as Provisional Liquidator of the Defendant Company as provided under Section 446(1) of the Companies Act, 1956. (Copy of order dated 28.9.1993. is annexed hereto as Annexure A). The functions of the Provisional Liquidator have, however, been kept in abeyance and the Provisional Liquidator so appointed has to carry out its functions in case of default in the performance of the conditions imposed in the said order dated 28.9.93 by the defendant. b) That by the said order dated 28.9.93 the Hon'ble High Court of Judicature at Bombay directed the Provisional Liquidator to forthwith make the inventory of the assets of the Company and the other powers have been restricted as provided under Section 450 clause (1) of the Companies Act, 1956 and the same have been kept in abeyance. c) That in pursuation of and in terms of the said order dated 28.9.1993, the Provisional Liquidator so appointed vide letter dated 17.12.1993 informed the company for making an inventory of moveable and immoveable assets of the defendant company and the Provisional Liquidator so has prepared the inventory of assets of the Company in compliance with the orders dated 28.9.1993. Copy of letter dated 17.12.1993 is annexed hereto and marked as Annexure B. (d) That the Company committed default in compliance with the said order as the company could not deposit the amount within the time as mentioned in the said order dated 28.9.1993. However, on or about 27/28.1.1994, the parties to the said winding up company petition entered into a compromise and mutually agreed to extend the time for the payment and consent terms recorded between the parties were filed in the Hon'ble High Court of Judicature at Bombay on or about 28.1.1994. The order of appointment of the Official Liquidator as Provisional Liquidator however continued to be subsisting and in force. Copy of the consent terms dated 27/28.1.1994 is annexed hereto and marked as Annexure C, and the same were accepted by the Hon'bic Company Judge vide order dated 28.1.1994 copy of which is annexed hereto and marked as Annexure D. (e) That the defendant company even failed to comply with terms of subsequent consent terms dated 28.1.1994 and committed default thereof. Consequent thereupon the appointment of Provisional Liquidator vide order dated 28.9.1993 stands confirmed as provided under Section 446(1) of the Companies Act. 1956 and has become fully impoweredto carry its powers as provided under order dated 28.9.1993.