Auction sale cannot be quashed.

(Appeal under Clause 15 of the Letters Patent against the order of the learned single Judge, dated 17.02.2006, made in WPMP No.2722 of 2005 in W.P. No.14577 of 1999.)

P. Sathasivam, J.

By consent of all the parties, the Writ Appeal itself is taken up for disposal.

2. Aggrieved by the Order, dated 17.02.2006, of the learned single Judge, made in WPMP No.2722 of 2005 in W.P. No.14577 of 1999, the appellants have filed the above appeal.

3. Heard Mr.AR.L.Sundaresan, learned Senior counsel for the appellants; Mr.R.Krishnamurthi, learned Senior Counsel for R-1; Mr.R.S.Raveendhran, learned counsel for R-2; and Mr.T.R.Rajagopalan, learned Senior Counsel for R-3.

4. One of the depositors of M/s.Alwarpet Benefit Fund Limited approached this Court by way of Writ Petition, viz., W.P. No.14577 of 1999, seeking for the issuance of a mandamus, directing the first respondent therein, ie., M/s.Reserve Bank of India, to appoint a fit and proper person as custodian/Special Officer for taking immediate control and possession of all the assets, properties, movables and immovables, and securities belonging to M/s.Alwarpet Benefit Fund Limited and pay the depositors their original due. By order dated 13.10.1999 read with the amended order dated 26.10.1999 passed in W.P. Nos.14577/99 etc. Batch, a learned single Judge appointed Justice S.Padmanabhan, retired Judge of this Court, as Commissioner and Thiru.T.Venkatachalam, Retired General Manager of T.N.S.C. Bank as Joint Commissioner. Both the Commissioner and the Joint Commissioner took charge on 26.10.1999 and from that date onwards, they are administering M/s.Alwarpet Benefit Fund Limited.

The Commissioner, pursuant to the orders of this Court, had sold certain properties including the personal properties of the appellants. Though the order granting permission to sell the properties was challenged by way of Appeal, the fact remains, the said order was confirmed by the Division Bench as well as the Supreme Court. In order to mobilise funds, the Commissioner filed further application for permission to sell five items of properties and permission was granted in WPMP No.2722 of 2005 by order dated 05.01.2006. In the same order, the learned single Judge directed the Commissioner to make publication in one Tamil Daily and one English Daily having circulation at Madras for the auction to be held on 08.02.2006 and thereafter by order dated 17.02.2006 approved the sale with regard to the said five items of properties. Questioning the said order, particularly the approval order dated 17.02.2006, the appellants have filed the present Appeal.

5. Mr.AR.L.Sundaresan, learned Senior Counsel appearing for the appellants, mainly contended that the properties in respect of which permission has been sought for are not the properties of the Company as there has been no adjudication by any Court, Forum or Authority to the effect that they are the properties of the Company or that they had been acquired with the funds of the Company, hence, the permission granted on 08.02.2006 and the approval order dated 17.02.2006 cannot be sustained. According to him, the earlier writ petition, filed for appointment of Commissioner, itself is not maintainable. There is no order of winding up of the company; the company is not in liquidation; and there is no adjudication with regard to any act of misfeasance or malfeasance as against the appellants. He also contended that the learned Judge ought not to have entertained the application for sale of properties.

6. Mr.R.Krishnamurthi, learned Senior Counsel for the first respondent/Commissioner, took us through the orders passed by this Court in various bail applications, writ miscellaneous petitions, writ petitions etc., and contended that it is not open for the the appellants to raise all these objections at this stage.

7. Though an order was passed as early as on 13.10.1999 and 26.10.1999; appointing the Hon'ble Mr. Justice S.Padmanabhan, Retired Judge of this Court, as Commissione