(Per : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI) 1. All these OJ Appeals are filed by the persons in possession of the premises constructed on property of Company in question. So far as OJ Appeal Nos.28 of 2008 to 92 of 2008 are concerned, the date of Judgment and Order of the learned Company Judge is 18.03.2008.
2. These occupants were served with Notices dated 24.05.2007 and 10.10.2007 by the office of the Official Liquidator, a copy of which is produced at Annexure – 'A' to Company Application No.73 of 2008.
3. Learned Advocate Mr. R. S. Sanjanwala for the appellant submitted that, in all matters, all occupants were served with similar Notices. Learned Advocate for the appellant submitted that, the said Notices do not mention about any Order passed by the learned Company Judge directing the Official Liquidator to issue such Notices. Learned Advocate for the appellant submitted that, to put it differently, the said Notices were not issued pursuant to any Order passed by the learned Company Judge.
4. Learned Advocate for the appellant invited attention of this Court to the said Notices. The said Notices refer to an Order dated 07.09.1993 passed by the High Court of Gujarat in Company Petition No.79 of 1989 in the matter of M/s. Vijay Mills Co. Ltd. whereby the Mill Co. was Ordered to be wound-up. The learned Advocate for the appellant submitted that, thereafter in second para, the said Notices refer to an Order dated 20.02.1997 passed by this Court in Company Application No.208 of 1995. Learned Advocate for the appellant made available for perusal a copy of that Order dated 20.02.1997 passed in Company Application No.208 of 1995 and stated that, the said Order, nowhere, directed or permitted the Official Liquidator to issue such Notices.
5. Learned Advocate for the appellant submitted that, these Notices were replied by the occupants, but without taking into consideration, the contents of the reply, the Official Liquidator issued another Notice on 10.10.2007 directing thereby, to the occupants to vacate the premises in their possession and therefore, the occupants were constrained to file respective Company Applications which came to be heard and decided by the learned Company Judge by Order dated 14.02.2008. The said Order passed by the learned Company Judge is the subject matter of challenge, in these appeals. On perusal of the Order, it is found that, neither the Official Liquidator filed any report before the learned Company Judge seeking direction to issue such Notices to the occupants nor there was any suo-motto direction, issued by the learned Company Judge, directing the Official Liquidator to issue such Notices.
6. Learned Advocate for the appellant submitted that, the Notices issued by the Official Liquidator are glaring example of non-application of mind. The learned Advocate further submitted that, the Official Liquidator did not undertake the required exercise before issuing such Notices and therefore, only on the short ground that, neither the learned Company Judge passed any Order directing the Official Liquidator to issue Notices nor there is any Order permitting the Official Liquidator to issue such Notices, these Notices are required to be quashed and set-aside.
7. Learned Advocate for the appellant invited attention of the Court to the relevant discussion in this regard and about the facts of the case in para nos.7 and 8 of the Order passed by the learned Company Judge. Learned Advocate for the appellant further submitted that, so far as para nos.10 and 11 of the Judgment and Order of the learned Company Judge are concerned, the same do not deal with the aforesaid contentions and therefore, the Judgment and Order passed by the learned Company Judge is requierd to be quashed and set-aside.
8. Heard learned Advocate Mr. J. S. Yadav for the Official Liquidator. The matter was heard on 08.10.2012. The learned Advocate for the Official Liquidator was granted time to peruse the record pertaining to the matter and find out, if any Order or the Official Liquidator report is filed in this regard. Learned Advocate for the Official Liquidator was granted time to trace the Order or the Official Liquidator report, if any, in this regard.
9. The learned Advocate for the Official Liquidator is not able to produce any Order whereby the learned Company Judge directing the Official Liquidator to issue such Notices or any Official Liquidator report on which the learned Company Judge permitted the Official Liquidator to issue such Notices.
10. In the result the appeal is allowed. The Judgment and Order dated 14.02.2008 and 18.03.2008 are quashed and set-aside. The Notices dated 24.05.2007 and 10.10.2007 are also quashed and set-aside.
11. Learned Advocate Mr. J. S. Yadav for the Official Liquidator requested that, it may be clarified that, allowing of all these appeals and quashing of the Notices does not conclusively decide the question of being regular occupants of the premises.
12. As is clear from the aforesaid discussion, this Court has examined the only question i.e. whether Notices were issued after the direction issued by the learned Company Judge or permission was granted by the learned Company Judge. The Court has not examined the legality, validity and authenticity of the occupancy of the premises by the occupants.
13. It will be open for the Official Liquidator to take appropriate proceedings and it will be in the fitness of things that he must give necessary Notice/Intimation about the same to the occupants so that when the matter comes up for consideration of the learned Company Judge, the same can be decided after hearing all the parties.
(Ravi R. Tripathi, J.) Sunil W. Wagh (N. V. Anjaria, J.)