Recovery of dues of Banks - Auction sale - Official liquidator - DRT Act vis-à-vis Companies Act.

JUDGMENT

Dipak Misra, J.

Leave granted.

2. The spinal issue that has spiralled to this Court is whether the Company Judge under the Companies Act, 1956 (for short “the 1956 Act”) has jurisdiction at the instance of the Official Liquidator to set aside the auction or sale held by the Recovery Officer under the Recovery of Debts due to Banks and Financial Institutions Act, 1993 (for brevity “the RDB Act”) or whether the Official Liquidator is required to follow the route as engrafted under the RDB Act by filing an appeal assailing the auction and the resultant confirmation of sale.

3. Regard being had to the controversy involved which is in the realm of pure question of law, it is not necessary to exposit the facts in detail. Hence, the necessitous facts are adumbrated herein. The respondent, Allahabad Bank, a secured creditor with whom certain properties were mortgaged, filed Original Application No. 153 of 1999 under Section 9 of the RDB Act for recovery of a sum of Rs.39,93,47,701/- with interest from the company, namely, M/s. Rajindra Pipes Limited, which was decreed by the Debt Recovery Tribunal, Jabalpur (DRT) vide its order dated 7.3.2000. The Debt Recovery Certificate being DRC No. 164 of 2000 was issued for recovery of the aforesaid amount which was subsequently transferred to the DRT at Allahabad. Be it noted, Company Petition No. 113 of 1997 was filed before the learned Company Judge in the High Court of Judicature at Allahabad who, vide order dated 26.7.2000, had passed an order for winding up of the company, as a consequence of which the Official Liquidator had taken over the possession of the assets of the company on 24.7.2002. After receipt of the Recovery Certificate, the Recovery Officer attached the immoveable properties of the wound-up company by order dated 29.8.2002. The moveable properties of the company were attached as per order dated 23.12.2003. At this juncture, the Allahabad Bank filed an application before the Company Court for impleading it as a necessary party and protect its rights getting it out of the winding up proceedings. A prayer was made before the Company Court to grant permission to proceed with the sale of the attached properties by the Recovery Officer, Debt Recovery Tribunal (DRT). The learned Company Judge, on 13.2.2004, granted permission for proceeding with the attachment and sale of the assets for recovery of the dues under the RDB Act. It is worth stating here that no condition was imposed.

4. After auction and confirmation of sale by the DRT, the auction-purchaser filed an application before the learned Company Judge for issuance of a direction to the Official Liquidator to give physical possession. The Company Court, by order dated 4.4.2007, set aside the sale certificate on the ground that the Official Liquidator was neither heard in the matter nor was he given an opportunity to represent before the Recovery Officer for the purposes of representing the workmen’s dues and a portion of the workmen’s liability under Section 529-A of the 1956 Act. A direction was issued to the Recovery Officer to proceed to sell the assets only after associating the Official Liquidator and after giving him hearing to represent the claims of the workmen.

5. As the facts get further unfolded, after associating the Official Liquidator, the auction was held and the Recovery Officer proceeded with the confirmation of sale. At that stage, the Official Liquidator filed his objections pertaining to fixation of the reserve price, the non-inclusion of certain assets and the manner in which the auction was conducted. The Recovery Officer, after hearing the Bank and the Official Liquidator, confirmed the sale and a date was fixed for handing over the possession to the auction-purchaser, but the same could not be done as the Official Liquidator chose not to remain present. Thereafter, the auction-purchaser filed an application before the learned Company Judge for issue of a direction to the Official Liquidator to hand