IMPORTANT POINT
When indisputedly the order of winding up against Company becomes final and company has become non-functional for long, even BIFR could not come to its rescue, it would no doubt be ironical and unjust to get for the sale of the assets of the company-as a going concern.

JUDGMENT

Misra, J.-Leave granted.

2. The appellant-Allahabad bank the decree-holder has raised a question, whether after an order passed in execution proceedings for the sale of plant, machinery and moveable lying at the factory, can the same court later pass an order for sale of the factory of the company as a going concern . The submission is, by introducing into the sale of the factory as a going concern has in fact, nullified the execution itself. In order to appreciate the controversy we are hereunder giving short essential facts.

3. The appellant-Allahabad bank the decree-holder is a secured creditor of Rishra Steels Limited respondent No. 4 the judgment-debtor. On 19th December, 1990 the appellant-bank filed a suit against the said company represented by the Official Liquidator in the High Court for a decree for Rs. 4,06,90,548/- together with interest. On 15th July, 1996 a decree was passed by the Calcutta High Court for Rs. 3,47,94,232.85 together with interest. The decree provided; payment of decretal amount in 60 equal monthly instalments on and from 12th September, 1996; in default the petitioner was entitled to sale the suit properties by public auction or private contract. No appeal was preferred from this order nor any instalment was paid by the judgment-debtor. On the 26th August, 1997 the appellant-bank applied for execution of decree for the aforesaid amount along with interest. It is relevant to refer that the aforesaid judgment-debtor-company went into liquidation under the order of the winding up dated 4th June, 1990.

4. On 12th December, 1997 the High Court appointed the Official Liquidator in the said execution case, to take possession of the assets of the company and directed it to take steps for the sale of the assets of this company. The relevant portion of this order is quoted hereunder.

"The Official Liquidator is appointed Receiver for the purpose of making an inventory of the assets of the Company liquidation (in liquidation) and have the same value by a qualified Valuer for the purpose of sale of the said assets. The conditions for such sale shall be settled by him subject to confirmation by this Court."

5. On 19th December, 1997 this order was modified by directing that order for sale must be limited to the security of Allahabad bank, which has been plant, machinery and other moveable assets as mentioned in the schedule to the decree. The relevant portion of this order is also quoted hereunder :

"In the order for the sale on the application of the secured creditor Allahabad Bank, the same must be limited to its security and the order dated 12.12.1997 is modified to the above extent ..... At the time of settling the above sale, the question as to whether the suit of the company can be sold as a going concern shall be considered."

Thereafter the High Court through its order dated 23rd February, 1998 directed the Official Liquidator to publish an advertisement inviting offers for sale of the assets of the company in liquidation as a going concern . The relevant portion of this order is also quoted hereunder :

"The Official Liquidator is directed to appoint a Valuer in terms of the order dated 12th December, 1997 passed by this Court. Such valuation is to be made within 16th March, 1998. Upon such valuation being made, the Official Liquidator shall, thereafter, publish advertisements within 13th April, 1998, inviting offers for sale of the factory and assets of the Company in liquidation as a going concern ...... The Official Liquidator shall mention in his sale notice that the intending bidders should be prepared to re-employ the workmen stated to be 468 in number. In their offers and bidders shall indicate as to whether they are prepared to pay all the arrear dues of the workmen and if so the manner in which they proposed to pay off the said dues. It should be mentioned in the said notice that the sale shall be subject to confirmation by this Court."

6. Another order dated 10th July, 1998 was passed by