Ravi @ Rudragouda and Another Vs. Smt. Lakkavva and Others - Court Judgment

Excerpt:
- companies act, 1956 [c.a. no. 1/1956]. sections 529 & 529a & state financial corporation act 1951, section 29: [s.r. bannurmath & a.n. venugopala gowda, jj] proceedings under taking over of assets of the industrial concern in realisation of dues sale of assets - applicability of provisions of section 529 and 529a held, the corporation cannot exercise its rights if the assets of the industrial concern, has already vested in the company court or if the official liquidator had been put in charge of the assets of the industrial concern. if the winding up proceedings are not set in motion, then, there is no legal impediment to the corporation to take action under section 29 of the s.f.c. act, 1951 and permission of company court is not required to be obtained. in the absence of commencement of winding up proceedings, the provision of section 529 and 529a of the companies act cannot be made applicable. the action of the corporation under section 29 of the s.f.c. act is lawful. further, the corporation took over only the assets and not the management. the money realised by effecting sale under sub-section (2) of section 29, cannot be apportioned or ordered to be paid to the workmen of the industrial concern, when the industrial concern is not under the winding up proceedings, in terms of the provisions under the companies act. the corporation cannot be held liable either jointly or severally to pay the closure compensation or other claims of the workmen. the industry is liable to pay the wages of the lockout period and the closure compensation to the workmen. -- state financial corporations act, 1951 [63/1951]. section 29; power of the corporation under taking over the assets of the industrial concern to realise the dues -justification of the action of the corporation held, the corporation is empowered to effect recovery of its dues, by resorting to the measures, both under section 29 and 31 of the act. since the industry which was under a liability to the corporation in terms of the agreements executed by it, defaulted in repayment of the loan and failed to comply with the terms of the loan agreements executed by it, the corporation took over the assets of the industry, with the right to transfer by way of sale and realise the dues, from sale of the assets. further, the corporation took over possession of the assets of the industry and admittedly did not take over the management, to run the industry by itself. had it taken over the management, then it should have run the industry, in which event the provisions contained under sections 32a to 32g of the act would have come into operation. -- state financial corporations act, 1951. section 29; power of the corporation under taking over the assets of the industrial concern to realise the dues -justification of the action of the corporation held, the corporation is empowered to effect recovery of its dues, by resorting to the measures, both under section 29 and 31 of the act. since the industry which was under a liability to the corporation in terms of the agreements executed by it, defaulted in repayment of the loan and failed to comply with the terms of the loan agreements executed by it, the corporation took over the assets of the industry, with the right to transfer by way of sale and realise the dues, from sale of the assets. further, the corporation took over possession of the assets of the industry and admittedly did not take over the management, to run the industry by itself. had it taken over the management, then it should have run the industry, in which event the provisions contained under sections 32a to 32g of the act would have come into operation. - no person can be permitted to make fun of the court in such a manner and we have to take a strong view of it. if the respondent is resiling from the agreement, then it is always open to avail the proper remedy to enforce that agreement by proper forum as well and that the applicant must try to enforce that compromise or proceed with the enforcement or execution of the compromise. it would have been better if once the compromise has been entered into, that compromise should have been filed along with the application jointly signed for the decision in terms of the compromise. the settlement outside the court had taken place, then parties have to bear with that and are bound thereby as well as to enforce that according to law. i do not find any good ground to act under section 151, civil procedure code or order 47, civil procedure code to recall this court's order dated 9-11-1995. the application is rejected.order1. heard the learned counsel for the appellants sri i.g. gachchinmath and learned counsel for the respondents.2. by order dated 9-11-1995, passed by the hon'ble r. ramakrishna, j., the appellants were permitted to withdraw the appeal as per memo dated 16-10-1995 and the appeal was dismissed as withdrawn. the order dated 9-11-1995, is being quoted herewith verbatim.--'the appellants are permitted to withdraw this appeal as per the memo dated 16-10-1995.the appeal is dismissed as withdrawn'.the appellants had filed that memo along with an affidavit for permission to withdraw the appeal as according to the appellants, the parties have entered into a compromise and an electro state copy of the compromise alleged appears to have entered on stamp paper of rs. 20/- has been filed along with the memo and on that basis the appeal had been dismissed as withdrawn.3. after a lapse of almost one year on 28-11-1996, the present appellants have moved this i.a. vi with a prayer that the order dated 9-11-1995 permitting the appellants to withdraw the appeal and dismissing the appeal as withdrawn be recalled. this application has been made on the ground that after withdrawal of the appeal, a joint wardy was given on the basis of compromise entered between the parties with reference to thesuit properties and it has further been stated that later on when it was being given effect to by the village accountant vide m.e. no. 3520 and when it was sent for certification, the respondent resiled and filed objections before the tahsildar that she is not agreeable to the said compromise and to the certification of m.e. no. 3520 and under such circumstances, the appellants had to move this application for recalling the order dated 9-11-1995. the instrumentality of the court has got its own status and none can be allowed to make mockery of it. it is not that every now and then a party or appellant may come and say i don't want to press this appeal or i want to withdraw and when he will be allowed to withdraw it and once the order permitting the withdrawal is ordered, later on coming with an application to recall the order. no person can be permitted to make fun of the court in such a manner and we have to take a strong view of it. if the respondent is resiling from the agreement, then it is always open to avail the proper remedy to enforce that agreement by proper forum as well and that the applicant must try to enforce that compromise or proceed with the enforcement or execution of the compromise. it cannot be that merely because the respondent is resiling then appellant should be allowed to seek the withdrawal of the order of dismissal of appeal which order this court passed at the instance of appellant seeking dismissal of appeal as withdrawn. it would have been better if once the compromise has been entered into, that compromise should have been filed along with the application jointly signed for the decision in terms of the compromise. instead of doing that appellants sought withdrawal of the appeal and its dismissal. once opted that course, the appellant cannot be allowed to resile therefrom. the settlement outside the court had taken place, then parties have to bear with that and are bound thereby as well as to enforce that according to law. i do not find any good ground to act under section 151, civil procedure code or order 47, civil procedure code to recall this court's order dated 9-11-1995. the application is rejected. subject to the above observations, the application is rejected. the order dated 9-11-1995, stands as it is.

Judgment:
ORDER

1. Heard the learned Counsel for the appellants Sri I.G. Gachchinmath and learned Counsel for the respondents.

2. By order dated 9-11-1995, passed by the Hon'ble R. Ramakrishna, J., the appellants were permitted to withdraw the appeal as per memo dated 16-10-1995 and the appeal was dismissed as withdrawn. The order dated 9-11-1995, is being quoted herewith verbatim.--

'The appellants are permitted to withdraw this appeal as per the memo dated 16-10-1995.The appeal is dismissed as withdrawn'.

The appellants had filed that memo along with an affidavit for permission to withdraw the appeal as according to the appellants, the parties have entered into a compromise and an electro state copy of the compromise alleged appears to have entered on stamp paper of Rs. 20/- has been filed along with the memo and on that basis the appeal had been dismissed as withdrawn.

3. After a lapse of almost one year on 28-11-1996, the present appellants have moved this I.A. VI with a prayer that the order dated 9-11-1995 permitting the appellants to withdraw the appeal and dismissing the appeal as withdrawn be recalled. This application has been made on the ground that after withdrawal of the appeal, a joint Wardy was given on the basis of compromise entered between the parties with reference to thesuit properties and it has further been stated that later on when it was being given effect to by the Village Accountant vide M.E. No. 3520 and when it was sent for certification, the respondent resiled and filed objections before the Tahsildar that she is not agreeable to the said compromise and to the certification of M.E. No. 3520 and under such circumstances, the appellants had to move this application for recalling the order dated 9-11-1995. The instrumentality of the Court has got its own status and none can be allowed to make mockery of it. It is not that every now and then a party or appellant may come and say I don't want to press this appeal or I want to withdraw and when he will be allowed to withdraw it and once the order permitting the withdrawal is ordered, later on coming with an application to recall the order. No person can be permitted to make fun of the Court in such a manner and we have to take a strong view of it. If the respondent is resiling from the agreement, then it is always open to avail the proper remedy to enforce that agreement by proper forum as well and that the applicant must try to enforce that compromise or proceed with the enforcement or execution of the compromise. It cannot be that merely because the respondent is resiling then appellant should be allowed to seek the withdrawal of the order of dismissal of appeal which order this Court passed at the instance of appellant seeking dismissal of appeal as withdrawn. It would have been better if once the compromise has been entered into, that compromise should have been filed along with the application jointly signed for the decision in terms of the compromise. Instead of doing that appellants sought withdrawal of the appeal and its dismissal. Once opted that course, the appellant cannot be allowed to resile therefrom. The settlement outside the Court had taken place, then parties have to bear with that and are bound thereby as well as to enforce that according to law. I do not find any good ground to act under Section 151, Civil Procedure Code or Order 47, Civil Procedure Code to recall this Court's order dated 9-11-1995. The application is rejected. Subject to the above observations, the application is rejected. The order dated 9-11-1995, stands as it is.