The order of winding up passed by the Company Court on 6th July, 2005 was valid as there was no appeal pending at that time. The Appellate Authority was not empowered to consider the appeal or the re-call application in view of the order dated 6th July, 2005.

Patherya, J.

Two applications have been filed by the Union of India, the 100% shareholder in Bengal Immunity Ltd. (BIL) for stay of the winding up order dated 6th July, 2005 and for setting aside the order dated 1st March, 2006 and modification of the order dated 24th March, 2006.

Case of the Applicant

The case of the applicant contributory is that a reference was filed before the Board for Industrial and Financial Reconstruction (BIFR) in 1992. An order was passed on 25th February, 2003 recommending winding up of the Company (in liquidation). An appeal was filed by the Workers’ Union before the Appellate Authority (AAIFR). Such appeal was dismissed on 13th May, 2005 and thereafter restored and order passed setting aside the order recommending winding up passed by BIFR. Prior to the order of AAIFR the matter was placed under Section 20 of the 1985 Act before the Company Court and by order dated 6th July, 2005 an order of winding up was passed. The applicant seeks stay of the winding up order as bonafide steps has been taken by the contributory to revive the Company (in liquidation) on the basis of a revival report submitted. United Bank of India is the only secured creditor of the Company and a compromise has been reached with it.

The basis for calling tenders for sale of 392.04 cottahs of land at 88, Akshay Kumar Mukherjee Road, Calcutta no longer exists as the offer made though accepted initially was subject to a forfeiture clause. The terms of the offer have not been satisfied as certain new terms were imposed for implementation of the offer made by HSCL. Therefore, the agreement stands terminated which termination is to the knowledge of HSCL as it has called upon the applicants to repay the money with interest. The agreement between HSCL and Avinash Raj Construction Pvt. Ltd. (ARCPL) is a private agreement and in no way is the applicant involved with the same. In fact an order was passed on a writ application filed by ARCPL (W.P. 2060 of 2003) on 29th September, 2003. An application has been filed to re-call the said order and the same is pending. BIFR’s order dated 25.2.2003 no longer exists as the said order was set aside by the order dated 3rd March, 2008. Therefore the jurisdiction of the Company Court stands ousted. For the said proposition reliance is placed on the decisions reported in 89 Company Cases 609, 89 Company Cases 600 and (2000) 1 CLT 69.

The order dated 6th July, 2005 has been passed contrary to the decisions cited above and the mandatory provisions of winding up and formalities of sale have not been followed as no opportunity was given to the contributories. For the said proposition reliance is placed on (2005) 8 SCC 219. By the order dated 1.3.2006 the Company Court has sought to transfer the said property to a private party. The Court could not have passed such an order as it is BIFR alone who is empowered to sell the same. For the said proposition reliance is placed on (2003) 9 SCC 490. The dispute is between two Government agencies and it will be proper that the high powered committee constituted do settle such dispute. The order dated 3rd March, 2008 has been passed on an application filed by the Workers’ Union. Ten crores have been paid to the secured creditor and there is no concluded contract between BIFR and HSCL. The Union of India is the 100% share holder and the order dated 29th September, 2003 passed in

W.P. 2060 of 2003 filed by ARCPL has not been implemented as no payment has been made thereunder and it is only pursuant to order dated 1st March, 2006 that the balance payment has been made. For all the said reasons the orders sought be passed.

Case of the Workers’ Union :

On the appeal filed by the Workers’ Union BIFR’s order dated 25th February, 2003 has been set aside by AAIFR on 3rd March, 2008 with a direction upon BIFR to consider the scheme propounded by the workers in the appeal. Therefore the application filed by the contributory be allowed and orders sought be passed.

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