JUDGMENT S.P. Mehrotra, J.
1. Pursuant to the order dated 27th October, 2004, the case is listed peremptorily today.
2. Sri S.K. Saxena, Official Liquidator is present.
3. It appears that the Board for Industrial and Financial Reconstruction (in short "BIFR") sent its opinion contained in the order dated 5th March, 2003 (along with other orders passed during the proceeding before the BIFR) , inter-alia, stating that it was just, equitable and in public interest that the company in question, namely M/s Jyoti Extractions. (P) Ltd., having its registered office at 40/101, Luker Ganj, Allahabad-211001, U.P. should be wound up under Section 20(1) of the Sick Industrial Companies (Special Provisions) Act, 1985 (in short "SICA").
4. On receipt of the said opinion of the BIFR, this Court by its order dated 16-5-2003, inter-alia, directed for issuance of notice to the aforesaid Company as well as to the U.P. Financial Corporation to show cause as to why necessary order for the winding up of the said Company be not passed pursuant to the said opinion of the BIFR.
5. The said order dated 16-5-2003 is reproduced below:
Opinion of the Board for Industrial and Financial Reconstruction (BIFR) contained in the order dated 5th March 2003, inter-alia, stating that it was just, equitable and in public interest that the company in question (M/s Jyoti Extractions (P) Limited) should be wound up under Section 20(1) of the Sick Industrial Companies (Special Provisions) Act. 1985 has been received.
Issue notice to the aforesaid company, namely M/s Jyoti Extractions (Private) Limited at its registered office (40/101, Looker Ganj., Allahabad-211001, U.P.) as well as to the U.P. Financial Corporation to show cause as to why necessary order for the winding up of the said Company be not passed pursuant to the said opinion of BIFR. Notices will be issued fixing a date in the week commencing 4th August. 2003.
6. It appears that pursuant to the said order dated 16th May, 2003, notices were sent to the said Company (hereinafter also referred to as "the Respondent-Company") as well as to the U.P. Financial Corporation by Registered Post AD fixing 4-8-2003.
7. The Office submitted its report dated 4-8-2003 regarding service of the said notices. The said report dated 4-8-2003 is quoted below:
In compliance with Court's order dated 16-5-2003 notices were sent to the Respondent Company and U.P.F.C. by Registered Post/AD fixing date 4-6-2003; neither A/D nor undelivered cover has been returned back.
The case is put up for order.
8. In view of the said office report dated 4-8-2003, the Court passed the following order 4-8-2003 Await service of notices stated to have been issued pursuant to the order dated 16-5-2003.
List after three weeks.
9. Pursuant to the said order dated 4-8-2003, the case was listed before the Court on 28-8-2003.
10. On 28.8.2003, the Court passed the following order :
Service of notice upon the Company M/s Jyoti Extractions (P) Ltd. having its registered office at 40/101, Looker Ganj, Allahabad is sufficient under Chapter VIII Rule 12 of the High Court Rules. However, by way of abandoned precaution Official Liquidator is directed to serve notice upon the aforesaid Company through registered post as well as Dasti indication therein that the case will be listed for orders on 25-9-2003.
List on 25-9-2003.
11. It further appears that the Official Liquidator submitted his report being Report No. 248 of 2003 (Paper No. A-3) regarding compliance of the directions given in the said order dated 28th August 2003.
12. It further appears that the U.P. Financial Corporation put in appearance through Sri A.K. Gaur, Advocate.
13. An application being Civil Misc. Application No. 15811 of 2003 (Paper No. A-4) was also filed on behalf of the U.P. Financial Corporation.
14. In reply to the said application, namely, Civil Misc. Application No. 158711 of 2003 (Paper No. A-4) filed on behalf of the U.P. Financial Corporation, the Official Liquidator submitted his report being Report No. 257 of 2003.
15. It further appears that on 25th September, 2003, Sri Triloki Nath, Advocate filed his Vakalatnama on behalf of the respondent-company. On the said date i.e. 25th September, 2003, the Court passed the following order.
Sri Trilok Nath has filed Vakalatnama on behalf of respondent-company.
The case is passed over on the illness slip of Sri A.K. Gaur one of the learned counsel for the respondent.
List after Dashhara vacation.
16. Pursuant to the said order dated 25th September 2003, the case was listed before the Court on 9th October 2003. On the said date, i.e. 9th October 2003, three weeks' and no more time was granted to Sri Triloki Nath, learned counsel for the respondent company for filing counter affidavit. The said order dated 9th October 2003 is reproduced below:
Three weeks and no more time is granted to Sri Triloki Nath, learned counsel for the respondent-company to file counter affidavit.
17. Pursuant to the said order dated 9th October 2003, the Office submitted its report dated 3rd November, 2003, inter-alia, stating that "in compliance with Court's order dated 9-10-2003, counter affidavit has not been filed by the learned counsel for the respondent-company.
18. On 3rd November 2003, the Court passed the following order:
List after two weeks meanwhile learned counsel for U.P.F.C. may file Counter Affidavit. Official Liquidator states that U.P.F.C. has also filed a writ petition in this Court being Writ Petition No. 6950 of 2003, in which an order has been passed on 30-4-2003, A mention has been made on behalf of Sri Triloki Nath, learned counsel appearing for the Company that as his client is not responding, hence he wants to withdraw his Vakalatanama and seeks time for filing proper application for the same. The said application may also be filed within the aforesaid period of two weeks.
19. It is thus evident that on 3rd November 2003, Sir Triloki Nath, learned counsel for the respondent-company mentioned that as his client was not responding, he wanted to withdraw his Vakalatnama, and in the circumstances he sought time for filing proper application for the same. Thereupon, the Court, by the said order dated 3rd November 2003, granted two weeks' time to Sri Triloki Nath, Advocate for filing the requisite application.
20. On 12th February, 2004, the Court passed the following order:
On prayer made by Shri Ram Krishna holding brief for Shir Triloki Nath, learned counsel for the Responden-company, the case is directed to be listed in the week commencing 1st March, 2004, so as to enable Shri Trloki Nath to move proper application as mentioned in the order dated 3rd November 2003.
21. It further appears that pursuant to the said order dated 3rd November 2003, read with the said order dated 12th February, 2004, Sri Triloki Nath, Advocate filed an application being Civil Misc. Application No. 40172 of 2004 (dated 26-2-2004) (Paper No A-8), inter-alia, praying that he (Sri Triloki Nath) be permitted to withdraw from the case as the learned counsel for the respondent-company and his Vakalatnama be treated as withdrawn.
22. On the said application, the Court passed the order dated 19th March 2004, which is reproduced below:
Pursuant to the order dated 3-11-2003 read with the order dated 12-2-2004 the present Civil Misc. Application No. 40172 of 2004 has been filed by Sri Triloki Nath, Advocate.
It is inter-alia, prayed by Sri Triloki Nath (Applicant in the aforesaid application) that he be permitted to withdraw from the case as the learned counsel for the respondent and his Vakalatnama be treated as withdrawn.
It is inter-alia, stated in the said application that despite repeated communications to the respondent-company no steps have been taken by the respondent-company for filing counter affidavit.
In the circumstances, Sri Triloki Nath wants to withdraw from the case.
Having regard to the averments made in the aforesaid application, the application is allowed. Sri Triloki Nath is permitted to withdraw as the learned counsel for the respondent-company, and his Vakalatnama filed on behalf of the respondent-company is treated as withdrawn.
Let fresh notices be issued to the respondent-company pursuant to the order dated 16-5-2003. Notices will be issued fixing a date in the week commencing 17-5-2004.
23. Thus by the said order dated 19th March 2004, Sri Triloki Nath, Advocate was permitted to withdraw as the learned counsel for the respondent-company and his Vakalatnama filed on behalf of the respondent-company was treated as withdrawn.
24. Further, by the said order dated 19th March 2004, fresh notice were directed to be issued to the respondent-company pursuant to the said order dated 16-5-2003.
25. It further appears that pursuant to the said order dated 19th March 2004, fresh notice was issued to the respondent-company by Registered Post AD fixing 17-5-2004.
26. In regard to the service of the said notice sent to the respondent-company by Registered Post AD, the Office submitted the following report dated 17-5-2004.
In compliance with Court's order dated 19-5-2004, notice was sent to the respondent-company on 31-3-2004 by the Registered Post AD fixing 17-5-2004. Neither Ad nor undelivered cover has been returned back.
The case is put up for orders.
27. The Office again submitted a report dated 30-7-2004/6-8-2004 in regard to the service of the said notice sent to the respondent-company by Registered Post /AD. The said office report dated 30-7-2004 / 6-8-2004 is quoted below:
In compliance with Court's order dated 19-3-2004, notice was sent to the respondent-company on 31-3-2004 by Registered Post / AD. fixing 13-5-2004. Neither Ad nor undelivered cover has been returned back.
The case is put up for orders.
28. In view of the office report, the Court passed an order dated 20th August 2004, inter-alia, holding the service of notice on the respondent-company to be sufficient in view of the provisions of Explanation II to Rule 12 of Chapter VIII of the Rules of the Court, 1952. The said order dated 20th August 2004 is quoted below:
Pursuant to the order dated 13-8-2004, the case is listed peremptorily today. Sri A.K. Gaur, learned counsel for U.P. Financial Corporation has again sent illness slip.
As the case is listed peremptorily today the case is not being passed over.
Perused the office report dated 17-5-2004 and the office report dated 30-7-2004 / 6-8-2004 in regard to the service of notice stated to have been issued by the registered post A/D to the respondent-company pursuant to the order dated 19-3-2004 passed on Civil Misc. Application No. 40172 of 2004.
In view of the said office reports, service of notice on the respondent-company is held to be sufficient in view of the provisions of Explanation II to Rule 12 of Chapter VIII of the Rules of the Court, 1952.
List in the week commencing 20-9-2004.
29. It is evident from a perusal of the record that despite service of notice on the respondent-company having been held to be sufficient by the said order dated 20th August 2004, none has put in appearance on behalf of the respondent-company.
30. No reply / objection / counter affidavit showing cause as required by the order dated 16th May 2003 has been filed on behalf of the respondent-company.
31. The BIFR in its opinion contained in the said order dated 5th March 2003, inter-alia, observed as follows:
After consideration of all the relevant facts and circumstances and after giving an opportunity of being heard to all concerned parties and in the light of unanimous consent on the winging up of the company, the Bench confirmed its earlier prima facie pinion that the sick industrial company viz. M/s Jyoti Extraction Pvt. Ltd. was not likely to make its net worth exceed the accumulated losses within a reasonable time while meeting all its financial obligation and that the company as a result thereof was not likely to become viable in future. It was, therefore, just, equitable and in public interest that the company should be wound up under Section 20(1) of the Act and the Board confirmed accordingly its prima facie opinion to wind up the company. The Board further directs that this order along with earlier orders/ proceedings be forwarded to the concerned High Court of Jurisdiction.
32. The said opinion has been sent by the BIFR under Section 20(1) of the SICA.
33. Nothing has been brought on record on behalf of the respondent-company before this Court persuading this Court to take a different opinion from that expressed by the BIFR in the said order dated 5th March, 2003.
34. In the circumstances, the opinion sent by the BIFR, as contained in the order dated 5th March, 2003, is accepted, and it is concluded that it is just and equitable that the respondent-company, namely, M/s Jyoti Extraction Pvt. Ltd. having its registered office at 40/101, Looker Ganj, Allahabad-211001, be directed to be wound up.
35. Accordingly, it is directed that the respondent-company, namely, M/s Jyoti Extraction Pvt. Ltd. having its registered office at 40/101, Looker Ganj, Allahabad-211001 be wound up under Section 433(f) of the Companies Act, 1956 read with Section 20(2) of the SICA.
36. The Official Liquidator is appointed as the Liquidator for the respondent-company in view of the provisions of Section 449 of the Companies Act, 1956.
37. The Official Liquidator is directed to take necessary steps for the liquidation of the respondent-company.