The Company Court's powers are limited; specific performance cannot be ordered without valid enforcement, and a contributory lacks locus standi if liabilities have been settled.

JUDGMENT :

Sabyasachi Bhattacharyya, J.

1. The present application has been filed for recall of an Order dated September 5, 2024, allowing C.A. No.03 of 2002 (Old C.A. No.507 of 2002) in connection with C.P. No.55 of 1985, thereby releasing the property-in-question, situated in Gurgaon, Haryana, in favour of the Disclaimer Applicant (hereinafter referred to as “the DA”) therein.

2. Learned senior counsel appearing for the recall applicant contends that the said order was passed in the absence of the present applicant. Although admitting that a notice was recorded in the order under recall to have been served on the learned advocate for the applicant, it is submitted that the said advocate had shifted his law practice to Rajasthan High Court, Jaipur Bench since the month of May, 2023. Hence, in effect, the present applicant did not have notice of the said proceedings.

3. Secondly, it is argued that the order under recall ought to be set aside on the ground of suppression of material facts by the DA. By an order dated August 14, 2987 passed in the winding up proceeding, the Company Court had, inter alia, directed the DA, namely M/s. East India Cotton Manufacturing Company Limited, to complete sale of the subject-property in favour of the Company (in Liquidation) pursuant to an agreement for sale dated September 29, 1980 entered into between DA and the Company (in Liquidation).

4. The Official Liquidator (O/L) filed an application in the year, 1989 for implementation of the said order, alternatively for leave to sue for specific performance of such agreement, which was, and still is, pending. Furthermore, full consideration for the proposed sale was paid in terms of the agreement by the Company (in Liquidation). Such amount was not directed to be returned by the order under recall.

5. Thirdly, by dint of the existence of the said agreement and possession having been handed over to the Company, the provisions of Section 53A of the Transfer of Property Act are attracted, thereby precluding any legal action from being taken by the DA against the Company (in Liquidation).

6. Such facts were completely suppressed, it is alleged, while obtaining the order under recall.

7. The present applicant, being a contributory, has vital interest in the valuable assets of the Company (in Liquidation) and, as such, the present application, it is submitted, is very much maintainable at its instance.

8. Learned senior counsel for the DA, in reply, contends that Mr. Saket Sharma, the learned advocate appearing for the present applicant, had not only received a copy of the disclaimer application but had also received other notices and appeared on behalf of the DA in several proceedings much after May, 2023, when he is alleged to have shifted practice to Rajasthan. Learned senior counsel relies on several orders where the name of Mr. Saket Sharma was recorded to be appearing on behalf of the applicant post May, 2023.

9. Secondly, it is argued that the facts which were not disclosed or considered by the Court while passing the order under recall were not material for the adjudication of the disclaimer application.

10. In the affidavit of the O/L, the O/L sought leave to sue for specific performance, which application was never moved, nor any such suit filed.

11. Moreover, the subject-property is an onerous liability of the Company (in Liquidation), since huge amounts of rent/licence fees would have to