ORDER
M.M. Das, J.
1. All the above four cases have been filed by the respective petitioners praying for winding up of the Opp. Party Company, namely, Swami Marine Products Private Limited. By orders passed previously in each of the cases, except Copet No. 10 of 2003, notices were published in the daily newspapers as per the direction of this Court.
2. Mr. Milan Kanungo has entered appearance on behalf of the Opp. Party-Company in all the above cases. He has filed a memo along with documents showing that the Opp. Party-Company has been seized by the Orissa State Financial Corporation under Section 29 of the State Financial Corporation Act, 1951 on 4.11.2004 and proposals for settlement have been filed by the Opp. Party-Company before the Orissa State Financial Corporation, Mr. Kanungo submitted that though the assets of the Opp. Party-Company have been seized by the Orissa State Financial Corporation under Section 29 of the S.F.C. Act, 1951 but the same has not been put to sale as yet. He, therefore, submitted that since the unit of the Opp. Party-Company is already under seizure by the O.S.F.C., it would not be practicable for this Court under the Companies Act, 1956 to pass orders for winding up of the Opp. Party-Company.
3. Mr. Rajen Mohapatra, Learned Counsel appearing on behalf of the petitioners in the above four cases submitted that in the facts of the case, it would be open for the Company Court to pass an order of winding up even if the property has been seized under Section 29 of the S.F.C. Act. He relied upon the decisions in the case of Maharashtra State Financial Corporation, Bombay and Anr. v. The Official Liquidator, High Court, Bombay and Liquidator of Atrois Chemicals Pvt. Ltd., : AIR1993Bom392 and in the case of Manganese Ore (India) Ltd. v. Sandur Manganese and Iron Ores Ltd., (2001) 6 Comp LJ 119 in support of his contention.
4. In the case of Maharashtra State Financial Corporation, Bombay (supra), Smt. Sujata Manohar, J. speaking for the Court held that the power to sale which is given to a financial corporation under Section 29 of the S.F.C. Act has to be exercised consistently with the right of pari passu charge holder and such a right can be exercised with the consent of the pari passu charge holder or on orders of the Court after making the said charge holder a party to the proceedings to enforce the security and since the charge holder is the Official Liquidator, his power to consent is subject to the sanction of the Court. It was therefore, held in the said decision that in the premises whenever there is a pari passu charge over any property of a company in winding up by virtue of the proviso to Section 529 of the Companies Act, 1956, leave of the Court is necessary for the sale of the property as the charge holder is the Official Liquidator.
5. However, from the facts of the said case, I find that in that case, an order was already existing by which the company was ordered to be wound up and the Official Liquidator was appointed as liquidator of the company. In the instant case, however, no such order has yet been passed, but nevertheless, these applications for winding up were filed much prior to the seizure of the properties by the O.S.F.C. under Section 29 of the S.F.C. Act on 4.11.2004. As a matter of fact, notice of filing of the petition/petitions for winding up was/were published in the newspapers as per the direction of the Court and was also published in the Official Gazette on 29.4.2002. Thus, a legal presumption arises that the O.S.F.C. had the knowledge of pendency of these petitions for winding up of the Opp. Party-company on the date when seizure under Section 29 of the S.F.C. Act was effected.
6. In the case of A.P. State Financial Corporation v. Official Liquidator, : AIR2000SC2642 , the Supreme Court held that the statutory right of the financial corporation to sale the property of a defaulting concern under Section 29 of the S.F.C. Act, 1951 has to be exercised with the rights of pari passu charge to the workmen created by the proviso to Section 529 of the Companies Act. Dealing with the question as to whether Section 29 of the S.F.C. Act will have over riding effect on Section 529 & Section 529-A, the Supreme Court held that the Act, 1951, i.e., S.F.C. Act, 1951 is a special Act for grant of financial assistance to industrial concerns with a view to boost industrialization and also recovery of such financial assistance if it becomes bad and similarly, the Companies Act deals with Companies including winding up such companies. It further held that both Section 29 of the Act, 1951 and Section 529-A of the Companies Act have competing non-obstante provisions but proviso to Sub-section (1) of Section 529 and 529-A being a subsequent enactments, the non-obstante Clause in Section 529-A prevails over the non-obstante clause found in Section 29 of the Act, 1951. On the above analysis, it was held that the proviso to Sub-section (1) of Section 529 & 529-A of the Companies Act, 1956 will control Section 29 of the Act, 1951 and the liquidator shall be entitled to represent the workmen and force the above pari passu charge and, therefore, the Company Court was fully justified in imposing conditions to enable the Official Liquidator to discharge his function properly under supervision of the Company Court as the new Section 529-A of the Companies Act confers upon a Company Court a duty to ensure that the workmen's dues are paid in priority to all other dues in accordance with the provisions of the above Section.
7. No doubt, in subsequent decision of the Supreme Court, it has been held that dues of the workmen will run pari passu with the dues of the other secured creditors.
8. In view of the above position of law and in view of the fact that the dues of the petitioners in the above cases have been admitted by the Opp. Party-Company, I direct that the Opp. Party-company, namely, Swami Marine Products Private Limited be wound up and the Official Liquidator is appointed as the liquidator and directed to take follow up action in this regard. For the aforesaid reasons, the Orissa State Financial Corporation is restrained from putting the properties belonging to the Opp. Party-company seized by it under Section 29 of the S.F.C. Act, 1951 to sale or from creating any other charge thereon.