RAM SARAN SHARMA Vs. BANK OF INDIA

JUDGEMENT

(1.) THIS civil revision is directed against the orders dated July 22, 1987, and August 22, 1987, of the executing court appointing the receiver of the property of the judgment-debtor company and rejecting the objection of the petitioners that the sale of the property cannot be held without its attachment. Subsequently, Civil Revision No. 3036 of 1987 was directed only against the rejection of the above-referred objection, vide order dated August 22, 1987, on the notion that a joint civil revision against two orders may not be maintainable. Both these revision petitions shall be disposed of by this order.

(2.) IN brief, the facts are that Sudha Pharmaceuticals (hereinafter called "the company"), a private limited company, leased out, vide lease deed dated September 20, 1982, its premises along with office-cum-machinery, etc. , in favour of Ajeet Kumar Jain and delivered possession. The company was ordered to be wound up by order dated November 3, 1983, of the company judge of this court in Company Petition No. 100 of 1982 and the official liquidator was directed to take possession of the assets of the company. The company, before it went into liquidation, had taken some loans from the Bank of India, which instituted Civil Suit No. 118 on March 31, 1983, against the company as well as against the aforesaid Shri Ajeet Kumar Jain, the lessee, and the firm, Jaysons Pharmaceuticals. The requisite permission of the company judge under the provisions of Section 446 of the Companies Act, 1956, to prosecute the suit was taken during its pendency and the suit was ultimately decreed on June 4, 1986, in the sum of Rs. 63,92,247. 84 with future interest against the company in liquidation as well as against its erstwhile directors. The plaintiff-bank then filed an application, dated January 22, 1987, for the execution of the decree, under Order XXI, Rule II of the Code of Civil Procedure, without obtaining the leave of the company judge of this court under Section 537 of the Companies Act. In the course of those execution proceedings, the executing court, on the basis of the consent of the parties, appointed Shri Harbans Lal as receiver, vide order dated July 22, 1987. The objector-petitioner filed objections stating that the sale of the property of the company in liquidation could not be held without attachment and the executing court, vide its order dated August 22, 1987, ordered that the property be put to auction as per directions given in the said order.

(3.) LEARNED counsel for the parties agree that the impugned order of the trial court dated July 22, 1987, is not legally sustainable, being contrary to the provisions of Section 453 of the Companies Act, which specifically debars the appointment of a receiver of the assets of the company in liquidation which are in the hands of the liquidator except by or with the leave of the company court. Admittedly, no such leave was taken from the company court before the appointment of the above-referred receiver. Under these circumstances, the above-referred order had to be set aside.