( 1 ) THIS Company application is filed by the official Liquidator, Himalaya Tools (India) Private limited (in liquidation) wherein it is prayed that respondent No. 1-Gujarat State Financial corporation be directed to hand over possession of M/s. Himalaya Tools (India) Private Limited to the applicant immediately in view of the winding up order dated 25-4-1988 passed by this court.

( 2 ) THE order for winding up M/s. Himalaya tools (India) Private Limited was passed by this court on 25-4-88 and Official Liquidattor has been appointed as a liquidator of the Company. On 4-5-88 the Official Liquidator wrote a letter informing respondent No. 1 that he would take physical possession of the property of the Company on 13-5-88. On 8-5-88 notice was published in Times of India stating that the order for winding up was passed by this Court. It is the say of respondent No. 1-Gujarat State Financial corporation that on 9/05/1988, the respondent no. 1 has taken possession of the assets of the company by exercising power under Section 29 of the State Financial Corporations Act, 1951 (hereinafter referred to as the "act" ). The Gujarat state Financial Corporation and the Bank of maharashtra are secured creditors of the assets of the Company under winding up as contended by them. In the afffidavit-in-reply filed by respondent No. 1 it has been contended that under section 29 of the Act the Corporation is entitled to take over management and/or possession of the property of the industrial concern making default in repayment of loan or any instalment thereof. It can also transfer the Companys property by way of lease or sale and realise the amount without intervention of the Court. It has been stated that the Corporation has accepted the offer of M/s. Mahuwala Trading Company, Bombay, for the purchase of plant and machinery, of the company in liquidaiion and the possession of the plant and machinery is handed over to the purchaser on 20/12/1989 by recovering entire sale consideration of Rs. 8,99,786. 52.

( 3 ) AT the time of hearing of this applicalion learned Advocate Mr. Soparker appearing as amicus curiae on behalf of the liquidator submitted that once his Court has passed an order of winding up of the Company and Official Liquidator is appointed to take charge of the properties of the Company, secured creditors or unsecured creditors have no right to take possession of the companys property from the Official Liquidator. He submitted that once the property of the company under liquidaiion is in custody of the court, there is no provision under the Act or any other law empowering secured creditor to take possession of the property from the Court custody and sell it. Only the Court can deal and disburse its assets as per the provisions of the companies Act after determining the legal and payable dues of the creditors.

( 4 ) AS against this, Mr. Shah, learned Advocate appearing on behalf of respondent No. 1 - corporation, vehemently submitted that a secured creditor can realise dues by remaining outside the liquidaiion proceedings by sale of the property mortgaged or pledged. He submitted that a secured creditors has a right to transfer the property under Section 69 of the Transfer of property Act and under Section 176 of the Contract act and respondent No. 1 can also sell or transfer it as provided under Section 29 of the act.

( 5 ) LOOKING to the controversy the main question which would be required to be determined would be whether any secured creditor including the State Financial Corporation has any right to take possession of the Companys property which is in custody of the Court which has passed the winding up order.

( 6 ) THE learned Advocate Mr. Soparkar and mr. Shah who have argued out the matter at length after referring to the various provisions of the Act and decisions were not in a position to point out any provision in the Companies Act, the state Financial Corporations Act, the Transfer of property Act or any other