Heard learned Counsel for the parties.
Learned Counsel for the petitioner Mrs. Sangeeta N. Pahwa has placed reliance on Section 446 read with Section 2(11) and Section 10 of the Companies Act, 1956 (hereinafter referred to in short as 'the Act') that any matter arising out the winding up proceedings including disposal of the properties of the Company in liquidation, the Company Court would have the jurisdiction and not the Civil Court to entertain any claim arising in respect thereof. It is submitted that the petitioner is the purchaser of the land other than that of Survey No.110 and such purchases are exclusively as per the report of the Official Liquidator, Sale Deed was executed for the Plot No.2348 and 110/1. If the relief claimed by respondent No.1 before the Civil Court in Civil Suit No.64/2012 is seen, the prayer includes declaration of the above land bearing RS No.110/1 of Plot No.2348 purchased by the petitioner pursuant to the order passed by the Company Court. Even the earlier Company Application No.444/2011 filed by the respondent No.1 herein was disposed of and O.J. Appeal No.64/2011 filed against the above order which came to be confirmed by specifically holding that Survey No.110 of Village Khakharia is not of the ownership of the Company which has gone into liquidation. Therefore, it is submitted that barring Survey No.110, no other claim could have been entertained by the Trial Court and therefore, the order impugned deserves to be quashed and set aside.
As against the above, learned Counsel for the respondent No.1 Mr. P.R. Thakkar would submit that under the guise of the order passed by the Company Court, respondent No.1 has encroached over the land bearing Survey No.110 and in earlier round of litigation - Company Application as well as O.J. Appeal were not entertained by this Court only on the ground that the jurisdiction of the Company Court would be restricted to dealing with a transaction of the Company which is gone in liquidation and if the appellant (respondent No.1 herein) is right in his contention then he has to approach the appropriate forum. In view of the above, it is submitted that the nature of pleading and relief claimed before the Civil Court and consideration thereof by rejecting the objection of the petitioner deserve no interference by this Court.
Prima-facie, overall reading of the order impugned in the context of nature of objections raised by the objector / petitioner herein and orders passed by the Company Court as early as on 18.03.2008, 21.11.2008, 17.10.2011 and 21.11.2011, I am of the view that nature of prayer impugned in the Suit and consideration thereof by the Trial Court would be contrary to the provisions of Section 446, 456(3) read with Section 2(11) and (10) of the Companies Act, 1956 and therefore the matter deserves consideration and accordingly;
ADMIT.
RULE returnable on September 18, 2012.
Interim Relief is is granted in terms of Paragraph 8.(B).
To be heard finally on September 18, 2012.
Sd/-
(Anant S. Dave, J.) Caroline Top