S. B. SINHA. C. J.

( 1 ) A learned Judge of this Court referred the matter to a Division Bench in Company petition No. 131 of 1999. The question which arises for consideration is as to whether the Debts Recovery Tribunal can ask the provisional official liquidator to take certain action without obtaining the leave of the company Court in view of the decision of the Apex Court in Allahabad Bank vs. Canara Bank.

( 2 ) THE fact of the matter, in short, is as follows: A Company Petition - C. P. No. 131 of 1999 has been filed by the creditors of m/s. Pennar Paterson Limited seeking its winding up whereupon by an order dated 24-11-1999 the official liquidator has been appointed as provisional liquidator to take possession of the assets of the company. Pursuant to the said order the provisional liquidator has taken custody of the assets of the company after preparing an inventory in the presence of the secured creditors. While so, the State Bank of Hyderabad and other banking companies who also claim to be secured creditors moved an application - o. A. No. 286 of 2000 before the Debts recovery Tribunal wherein an application to appoint an advocate-Commissioner to take possession of the assets of the company has also been made whereupon sri S. Ravikanth, advocate has been appointed as Commissioner. Thereupon the advocate-Commissioner requested the official Liquidator through a letter to be present before him on the specified day. However, the Official Liquidator could hot be present before him for want of communication of the aforementioned letter whereupon the advocate-Commissioner filed a memo before the Debts Recovery tribunal and pursuant thereto the Debts recovery Tribunal passed the following order: in view of the above provision of law this Tribunal can appoint a commissioner for making an inventory of the properties of the defendant or for the sale thereof where it appears to it to be just and convenient. In the present case, the commissioner was appointed only for making an inventory and he is neither directed to take possession of the inventoried properties nor to sell them. The Official Liquidator being an officer of the Court and being a party to these proceedings ought to have cooperated with the Advocate- commissioner for making an inventory of the assets of the 1st defendant as he has got ample opportunity to have his say in the matter after the filing of the report of the Commissioner in case the applicant-Banks insist for sale of the assets of the 1st defendant which will be considered after hearing both sides and on merits keeping in view the law laid down on the various provisions of the Act 51 of 1994 and the relevant provisions of the Companies Act. The attitude of the Official Liquidator in not co-operating with the commissioner in making the inventory amounts to disobedience of the orders of this Tribunal. Hence the Commissioner is directed to issue notices to the parties afresh and to make an inventory of the assets of the 1st defendant wherever they are and in case the Official Liquidator who is said to be in possession of the assets of the 1st defendant is not co-operating and is objecting for the same, he is at liberty to seek the assistance of the police having jurisdiction and to break open the locks and to make an inventory and submit his report by 25-1-2001.

( 3 ) IN the aforesaid fact-situation the official Liquidator moved the Company court by filing the present application praying for the following reliefs: setting aside the order dated 9-1-2001 passed in O. A. No. 286 of 2000 by the presiding Officer of Hon ble Debt recovery Tribunal at Hyderabad. Restraining the Advocate- commissioner Sri S. Ravikanth in o. A. No. 286 of 2000 appointed by the hon ble Debts Recovery Tribunal not to proceed further in the matter. Order the costs of this application do come out of the assets of the Company and pass such further or other orders as this Hon ble Court may deem fit and proper in the circumstances of this c

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