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2021 Supreme(Guj) 347
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
VINEET KOTHARI, B.N. KARIA, JJ.
Legal Heirs and Reps. of Decd. Ratilal Chunilal Rana and Decd. Parvatiben Ratilal Rana - Appellant
Versus
OL of M/s Anand Cotspin Ltd. - Respondent
R/Civil Application No. 882 of 2021 In F/O. J. Appeal No. 8156 of 2021
Decided On : 09-06-2021
Advocate Appeared:
For the Appellant : Mr. Tirthraj Pandya(6685)
For the Respondent: Mr. Saurabh Patel
Point of law : administrative order is not required to be interfered by the Division Bench of this Court in the present Original Jurisdictional Appeal nor the Applicants deserve to be granted any such leave to appeal.
Headnote:
Civil Procedure Code, 1908 - Section 96 - Companies Act - Section 446(1) and 457(1)(a) - Seeking leave of this Court - Possession of the land - Sale deed - Handover the possession - Appeal has been filed by Legal Representatives of deceased and deceased seeking leave of this Court to file present Appeal against the aforesaid order of the learned Company Judge - Prayer in present application is Official Liquidator be permitted to prefer First Appeal under Section 96 of Code of Civil Procedure with necessary application to challenge the judgment and decree - Official Liquidator took over possession of the estate - Application being Company Application was served on liquidator with a prayer not to include the land situated at District Vadodara bearing T.P. Scheme admeasuring on east side of said plot lying on City Survey No. 295, 298 and 335 bearing revenue survey - ground that they are owners and in possession of the land as per the registered sale deed in their favour.
Finding o the court : First Appeal to claim Company's rights over land in question, for the company in liquidation namely was obtained by the Plaintiffs. The order passed by the learned Company Judge is only an administrative order passed by the learned Company Judge permitting the Official Liquidator to avail the right of appeal on behalf of the company in liquidation and this administrative order does not affect any rights of the present Appellants and therefore, they don't have any right of hearing before passing of such order by learned Company Judge and it cannot be said to be wrong or illegal in any manner - Court in present Original Jurisdictional Appeal nor the Applicants deserve to be granted any such leave to appeal.
Result :Ordered Accordingly
ORDER :
VINEET KOTHARI, J.
1. This O.J. Appeal has been filed against the order dated 10.12.2020 passed by the learned Company Judge in OLR No.64 of 2020 whereby the learned Company Judge permitted the Official Liquidator to file First Appeal under Section 96 of the Civil Procedure Code, 1908 against the Decree dated 23.01.2008 passed by the City Civil Court, Vadodara in Regular Civil Suit No.842 of 2007.
2. The present Appeal has been filed by Legal Representatives of deceased Ratilal Chunilal Rana and deceased Parvatiben Ratilal Rana seeking leave of this Court to file the present Appeal against the aforesaid order of the learned Company Judge of 10.12.2020, the relevant portion of which is quoted below for ready reference:
“2. The prayer in the present application is that the Official Liquidator be permitted to prefer First Appeal under Section 96 of the Code of Civil Procedure with necessary application to challenge the judgment and decree dated 23.01.2008 passed by the City Civil Court, Vadodar in Regular Civil Suit No. 842 of 2007.
3. The Official Liquidator Report indicates that by an order dated 20.03.2003 in Company Petition No.205 of 1998, the company was ordered to be wound up and an Official Liquidator was appointed. The Official Liquidator took over the possession of the estate on 05.06.2003. An application being Company Application No. 8 of 2019 was served on the liquidator with a prayer not to include the land situated at District Vadodara bearing T.P. Scheme No. 5 Final Plot 337 admeasuring 21739 sq. mtrs. on the east side of the said plot lying on City Survey No. 295, 298 and 335 bearing revenue survey no. 849 paiki and 857/12 and several other connected survey numbers on the ground that they are owners and in possession of the land as per the registered sale deed in their favour. According to the report, it appears that the occupants of the said property had filed Regular Civil Suit No. 842 of 2007. The said suit came to be allowed on 23.01.2008 and the defendants i.e. Anand Cotspin Limited were restrained from disturbing the possession of the land in question. The case of the Official Liquidator is that they ought to have been joined as party to the suit in para 7. Reliance is placed on Section 446(1) of the Companies Act to suggest that no suit or legal proceedings shall commence if on the date when the company is wound up without joining the official liquidator and without leave of the court. It is on this ground that the prayer is made.
4. In view of the above, the prayer of the Official Liquidator is granted in terms of para 8(A) of the application. OLR No. 64 of 2020 is accordingly allowed.”
3. Though OLR No.64 of 2020 made various prayers, the learned Company Judge only granted prayer 8(A) permitting Official Liquidator to file First Appeal. The prayers in OLR No.64 of 2020 are quoted below:
“8. In view of the aforesaid facts and circumstances, the Official Liquidator most respectfully seeks following orders and directions of this Hon'ble Court:( A) This Hon'ble Court may be pleased to permit the Official Liquidator under Section 457(1)(a) of the Companies Act, 1956 to prefer First Appeal under Section 96 of the Civil Procedure Code with necessary applications in the District Court at Vadodara challenging the Judgment & decree dated 23.01.2008 passed by City Civil Court, Vadodara in Regular Civil Suit No.842 of 2007. (B) This Hon'ble Court may be pleased to quash and set aside sale deed registered before the Sub-Registrar, Vadodara1, dated 28.10.2013 registered on 11.11.2013 with respect to land stiuated at District – Vadodara bearing TP Scheme No.5, Final Plot No.337 admeasuring 21739 sq. mtrs. paiki 5882 sq. mtrs. on east side of the said plot lying at City Survey No.295, 298 and 335 bearing Revenue Survey No.849 paiki and 857/12 and direct the occupants to handover the possession of aforesaid land of the company in liquidation to the Official Liquidator.
(C) This Hon'ble Court may be pleased to quash and se
