ARVINDBHAI P PANCHAL Vs. VINAYAK FOAM PVT LTD

JUDGEMENT

(1.) THE applicants, namely, Arvindbhai Panchal and one another have taken out this Judge's Summons praying for the direction to the Official Liquidator of Vinayak Foam Private Limited (In Liquidation) to return the properties / assets, namely, land bearing Survey No. 73/A, admeasuring 5788 Sq. Mts. of the Company in liquidation and other immovable property, namely, building, movable properties, namely, plant and machineries situated at Chhatral, Ahmedabad of the Company in liquidation to the applicants being the sole contributories of the Company as there are no other Secured or Unsecured Creditors, workers dues, statutory dues, taxes, cess or any outstanding liability against the Company in liquidation except the Unsecured Creditor, namely, U. B. Petroproducts Limited. The applicants have also prayed for the permission to tender the undertaking before this Court to the effect that, if any dues/debts remain outstanding against the Company in liquidation, the applicants shall make the payment to the said liabilities in addition to the liability of U. B. Petroproducts Limited.

(2.) THIS Court has issued notice on 30.09.2005. The Official Liquidator was directed to file report on the state of affairs, details of the property of the Company and outstanding dues of the Creditors, including Secured Creditors, if any, statutory dues or other liabilities. The Official Liquidator was further directed to include all existing assets of the Company in liquidation in the said report. On 31.01.2006, the Official Liquidator, instead of filing report, submitted that he did not have copy of the statement of affairs. The Court suggested the applicants to make payment of Rs.10 Lacs and Rs. 25,000/ - for considering their prayers. The applicants requested to get instruction. The applicants were also not knowing about the whereabouts of U. B. Petroproducts Limited at the relevant point of time. Upon inquiring, the applicants came to know that U. B. Petroproducts Limited was merged with Monali Petroproducts Limited, Chennai and leave to join the said Company was permitted on 21.03.2006 by this Court and the notice issued on the said party was made returnable on 24.04.2006.

(3.) ON 29.05.2006, for the first time, the report was filed by the Official Liquidator stating that the applicant should file scheme under Section 391 of the Companies Act, 1956 or get NOC from all creditors by inviting claims by issuing public advertisement. The Official Liquidator has also stated before the Court that the statement of affairs is not found in his office. It is the say of the applicants that as per the law, upon filing of statement of affairs, the Official Liquidator is bound to file report under Section 455 and thereafter, has to get the accounts audited twice in a year and such other mandatory formalities are required to be followed of inviting the claims, giving advertisement for inviting claims, filing of report for appointment of Sale Committee to sell assets and such other procedures, but instead of same, the Official Liquidator has set tight over the issue over a period of decade and has not done anything. In June 2006, the applicants filed a detailed affidavit to the report of the Official Liquidator. Based on the report of the Official Liquidator as well as the affidavit -in -reply of the applicants, this Court has passed an order on 02.08.2006 directing the applicants to issue public advertisement in Indian Express, English daily and Divya Bhaskar, Gujarati Daily both of Ahmedabad editions for inviting claims etc. indicating the date of further hearing of the matter on 05.09.2006. The Court has also made it clear that publication of the notice shall appear in these Newspapers, at least 14 days before the date of hearing. Pursuant to this order, advertisement was published and the order was complied with. An affidavit was filed on 05.09.2006 along with the newspaper cuttings of Indian Express dated 21.08.2006 and Divya Bhaskar dated 20.08.2006.