Whereas v. O.Sukumaran Pillai & Ors.

Whereas, Mr Bharali has urged with reference to section 446(2) of the Ac t that having regard to the purport of the language contained therein, the inst ant application is maintainable in law and this court has the jurisdiction to gr ant the reliefs prayed for, Mr Dutta has insisted that a conjoint reading of se ctions 446 and 466 of the Act belies the contentions of the applicant. Mr Bhara li in support of his stand has placed reliance on the decisions of the Apex cour t in Sudarsan Chitsr (I) Ltd. Vs. O.Sukumaran Pillai and Others, (1994) 4 SCC 6 57 as well as in Smt. Nirmala R. Bafna v. Khandesh Spining and Weaving Mills Co. Ltd and another, (1992) 74 Company cases (I) as well as on those rendered by various High Courts. This court vide its order dated 30.1.2009 on a consideration of the note dated 5.1.2009 submitted by the Official Liquidator had entrusted Sri Das Purka yastha with the task of identification of the properties claimed by the applican t to be its own and presently located in the factory premises of Aidaupukhuri Tea Estate. The aforenamed surveyor and loss assessor by his identification re port dated 3.4.2009 has set out in Schedules-A,B and C the list of tools, plant s and machineries and investments made in fixed assets by the applicant in the A idaupukhuri Tea estate , existing plants and machineries of M/s Aidaupukhuri Tea Estate handed over to the applicant during the lease agreement and the new pla nt and machinery installed by the applicant during the lease agreement respect ively in details. Copy of the report has been furnished to the learned counsel f or the parties and in course of the arguments, no reservation has been expressed with regard to the existence thereof. This observation of this court however, should not be construed to be by way of acceptance of the report as such. . On being queried by this Court, Mr Bharali has submitted on instructions that as on date even after submission of the identification report , no claim h as yet been made by the applicant in connection therewith before the respondent liquidator who, following the winding up order in terms of section 456(2) is t he physical custodian of the property of the Company in Liquidation on behalf of this court. Noticeably, the applicant has neither figured in the winding up pr oceeding , nor as on date has preferred any appeal against the order dated 5.5. 2005 passed in Company petition No.12/2002. Its claim of leasehold right vis a vis Aidaupukhuri Tea Estate has not yet been adjudicated upon and established in any court of law. The reliefs prayed by it, in the instant application assu redly stem from such lease. Be that as it may, having regard to the stage of th e liquidation proceeding and the legal consequences in terms of the order dated 5.5.2005 passed by this court in Company petition No.12/2002 whereunder the Of ficial Liquidator has the authority to administer the liquidation proceeding u nder the Act, it is considered appropriate, having regard to the nature of the c laim made by the applicant, that it be required to submit an application befor e him at the first instance in connection therewith for the reliefs contemplated in law. Ordered accordingly. It is made clear that this court has not on the p resent application expressed its mind on the merits of the contention of the ap plicant and the respondent Liquidator. If an application as indicated hereinabov e is submitted, the Respondent liquidator would deal with the claim made therei n strictly in accordance with the provisions of the Act. In the above view of th e matter, this Court considers it inessential at this stage to delve into the r ival contentions on the maintainability or otherwise of the instant application. This miscellaneous application is disposed in the above terms. No costs.