Gujarat High Court
Makwana Punambhai Ramjibhai vs Official Liquidator Apponited By High ... on 7 February, 2019
Author: K.M.Thaker
Bench: K.M.Thaker, V.P. Patel
C/OJA/20/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/O.J.APPEAL NO. 20 of 2018
With
CIVIL APPLICATION (OJ) NO. 1 of 2018
MAKWANA PUNAMBHAI RAMJIBHAI
Versus
OFFICIAL LIQUIDATOR APPONITED BY HIGH COURT OF GUJARAT FOR
STAR OF GUJARAT TEXTILE MILLS LTD
Appearance:
MR VIJAY PATEL WITH MR VK JOSHI(2329) for the PETITIONER(s) No.
1,10,100,101,102,103,104,105,106,107,108,109,11,110,111,112,113,114,115
,116,117,118,119,12,120,121,122,123,124,125,126,127,128,129,13,130,131,
132,133,134,135,136,137,138,139,14,140,141,142,143,144,145,146,147,148,
149,15,16,17,18,19,2,20,21,22,23,24,25,26,27,28,29,3,30,31,32,33,34,35,36,
37,38,39,4,40,41,42,43,44,45,46,47,48,49,5,50,51,52,53,54,55,56,57,58,59,6,
60,61,62,63,64,65,66,67,68,69,7,70,71,72,73,74,75,76,77,78,79,8,80,81,82,8
3,84,85,86,87,88,89,9,90,91,92,93,94,95,96,97,98,99
for the RESPONDENT(s) No. 2,3,4
MS PJ DAVAWALA(240) for the RESPONDENT(s) No. 1
OFFICIAL LIQUIDATOR(16) for the RESPONDENT(s) No. 1
CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
and
HONOURABLE MR.JUSTICE V.P. PATEL
Date : 07/02/2019
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE K.M.THAKER) Heard Mr. Patel, learned counsel with Mr. Joshi, learned counsel for the appellants and Ms. Davawala, learned advocate for the respondent Official Liquidator.
2. In present appeal, the appellants have challenged the order dated 9.3.2018 passed by Company Court in OLR No.2 of 2019. The impugned order reads thus: Page 1 of 6 C/OJA/20/2018 ORDER "1. This report is filed to take on record the facts stated therein that pursuant to the advertisement issued in the newspapers on 27.10.2017, the Official Liquidator has not received any offer / tender from any person and to permit the Official Liquidator to make payment of advertisement bill of Rs.4,01,750/ to M/s.Navnitlal & Company, the Advertising Agency from the funds available in the company's account.
2. As stated in the report, pursuant to the order dated 12.09.2017 passed by this Court to invite offers for sale of the assets of the company in liquidation, the Official Liquidator issued advertisement and sold five tender forms, but no offer / tender was received by him upto last date for receipt of the tender.
3. Learned advocate Ms.Davawala for the Official Liquidator submitted that there are encroachments including retention of the portion of land by the exworkers of the company in liquidation and the same may be the reason for nonreceipt of any offer from anybody though five tender forms were sold.
4. The Court finds that if there are encroachments on the land of the company in liquidation, the Official Liquidator is required to take appropriate action for eviction of the encroachments or of the persons unauthorizedly holding possession of the land of the company in liquidation. The Official Liquidator present in the Court states that he shall, immediately, issue notices to such encroachers and the persons unauthorizedly holding possession of the land of the company in liquidation and shall file appropriate report to this Court. The Official Liquidator may accordingly take appropriate steps for removal of the encroachments from the land of the company in liquidation and file report before this Court.
5. However, taking the facts stated in the present report on the record, the Official Liquidator is permitted to make payment of advertisement bill of Rs.4,01,750/ to M/s.Navnitlal & Company, the Advertising Agency from the funds available in the company's account.
6. The report stands disposed of accordingly."
3. Essentially, the appellants are aggrieved by para No.4 of the said order and subsequent consequential notice issued by Official Liquidator.
In view of grievance and controversy raised by present appellants, it is also necessary to take into account the notice issued by Official Liquidator in pursuance of impugned order dated Page 2 of 6 C/OJA/20/2018 ORDER 9.3.2018. The said notice reads thus: "In terms of Hon'ble High Court of Gujarat orders dated 14.06.1999 passed in Company Petition No. 212 of 1998, the Official Liquidator attached to the Hon'ble High Court of Gujarat has been appointed as Liquidator of STAR OF GUJARAT TEXTILE MILLS LTD. The possession of the assets of the said company has already been taken into custody by the Official Liquidator.
Whereas; by an order dated 09.03.2018 passed by the Hon'ble High Court of Gujarat at Ahmedabad in OLR No. 2 of 2017 in Company Application No. 154 of 2014 (OLR No. 147 of 2017), the Official Liquidator is directed to evict all encroachers/unauthorized occupants from the premises of the company situated at TPS No. 14., Bardolpura Dariapur, O/s Dariapur Gate, Mouje DariapurKazipug; Ahmedabad and for doing this, if there is any resistance from any one, the Official Liquidator is permitted to take help from the concerned police station and evict the encroachers/ unauthorized occupants from the premises of the company forthwith. J NOW THEREFORE; in terms of the directions of the Hon'ble High Court dated 09.03.2018 passed in OLR No.2 of 2017 in Company Application No. 154 of 2014 (OLR No. 147 of 2017), all the encroachers/unauthorized occupants on the land of the company are hereby called upon to vacate the premises within 30 (Thirty) days from the date of this notice, failing which, the Official Liquidator will initiate steps for removal of the encroachment/ unauthorized occupants from the land of the company in question any time thereafter with the help of the Police without any further notice"
3.1 In respect of said notice, it is also relevant to note that the appellant is more aggrieved by below quoted portion of notice: "....if there is any resistance from any one, the Official Liquidator is permitted to take help from the concerned police station and evict the encroachers/ unauthorized occupants from the premises of the company forthwith. J NOW THEREFORE; in terms of the directions of the Hon'ble High Court dated 09.03.2018..."
4. It is also contended by the appellants that the order dated 9.3.2018 came to be passed in OLR No.2 of 2017 which was filed by Official Page 3 of 6 C/OJA/20/2018 ORDER Liquidator for a limited purpose viz. seeking sanction of the expenditure incurred by Official Liquidator in issuing advertisement and that therefore, in view of nature and limited scope of Official Liquidator's report, said observation and direction contained in para No.4 of the order could not have been passed.
5. Today, during the course of the proceedings, Ms. Davawala, learned counsel for the Official Liquidator fairly submitted that certain part of the notice is undesirable and is required to be taken out. She also did not dispute the fact that scope of OLR No.2 of 2017 was limited.
She, however, vehemently emphasized that the said observation in the order dated 9.3.2018 came to be passed because the land in question is encroached upon by various encroachers and consequently, the Official Liquidator is unable to dispose of the land.
She also emphasized that, in this view of the matter, even the dues of workers are held up and Official Liquidator is unable to pay the workers and secured creditors and that therefore, there is dire need for the Official Liquidator to dispose the property so that from sale proceeds dues of workers and secured creditors can be paid.
Page 4 of 6 C/OJA/20/2018 ORDER6. Having said so, Ms. Davawala, learned counsel under instructions from Official Liquidator submitted that for the present, the Official Liquidator submits that present impugned notice in present form shall be withdrawn with liberty to issue fresh notice for the same purpose.
7. In view of said submission and statement by Official Liquidator, the cause to prosecute present appeal does not survive.
8. Therefore, we dispose of present appeal with following order: [a] The Official Liquidator will abide by and act in accordance with the submission and statement made on his instructions and he shall withdraw the notice dated 18.4.2018 with immediate effect.
[b] In view of withdrawal of notice, the objection against the order (para4) does not survive.
[c] Consequently, present appeal is rendered infructuous and is, accordingly, disposed of as infructuous since the cause of action does not survive.
[d] It is clarified that it will be open to the Page 5 of 6 C/OJA/20/2018 ORDER Official Liquidator to issue appropriate fresh notice in respect of property in question and to take necessary steps in accordance with law.
With aforesaid observation and clarification, present appeal stands disposed of.
Since appeal is disposed of, any other or separate order is not required in civil application.
Civil Application also stands disposed of.
(K.M.THAKER, J) (V. P. PATEL,J) KAUSHIK D. CHAUHAN Page 6 of 6