Gujarat High Court
Official Liquidator Of M/S Gujarat ... vs Manager - Bank Of Baroda & on 28 January, 2013
Author: R.M.Chhaya
Bench: R.M.Chhaya
OFFICIAL LIQUIDATOR OF M/S GUJARAT COMMUNICATION....Applicant(s)V/SMANAGER - BANK OF BARODA O/OLR/79/2012 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD OFFICIAL LIQUDATOR REPORT NO. 79 of 2012 In OFFICIAL LIQUDATOR REPORT NO. 266 of 2011 In COMPANY APPLICATION NO. 464 of 2011 In COMPANY PETITION NO. 310 of 2000 =========================================================== OFFICIAL LIQUIDATOR OF M/S GUJARAT COMMUNICATION....Applicant(s) Versus MANAGER - BANK OF BARODA & 6....Respondent(s) ================================================================ Appearance: MR.HIREN M MODI, ADVOCATE for the Applicant(s) No. 1 OFFICIAL LIQUIDATOR for the Applicant(s) No. 1 MR BHARAT JANI, ADVOCATE for the Respondent(s) No. 1 MR MRUGESH JANI, ADVOCATE for the Respondent(s) No. 4 MS NALINI S LODHA, ADVOCATE for the Respondent(s) No. 3 NOTICE SERVED for the Respondent(s) No. 2 , 5 - 7 ================================================================ CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA Date : 28/01/2013 ORAL ORDER
1. By way of this report, the Official Liquidator has prayed for the following reliefs:-
(A) This Hon'ble Court may be pleased to permit the Official Liquidator to publish advertisement in the newspapers i.e. Times of India in English script and Gujarat Samachar in Gujarati Script both in Ahmedabad, Baroda and Surat edition at the upset price of Rs.1,70,00,000/- and earnest money deposit (EMD) of Rs.20,00,000/- as fixed by the Hon ble High Court of Gujarat in order dated 02.02.2012 passed in Official Liquidator Report No. 266 of 2011 and as decided in the Sale Committee meeting held on 04.05.2012.
(B) This Hon'ble Court may be pleased to direct the secured creditors of the Company to deposit amount of Rs.5,00,000/- each as agreed by them in the meeting schedule on 09.11.2011 and also on 04.05.2012 in the office of Official Liquidator at the earliest. So, as to enable the Official Liquidator to implement the Sale Schedule of the office premises of the Company (In Liqn.) situated at Ground Floor, 2nd & 3rd of Anurag Commercial Centre located on off R C Dutt Road, Nr. Race Course, Vadodara.
This Hon'ble Court may be pleased to direct the secured creditors to furnished title documents/mortgaged documents to the Official Liquidator so, that the sale proceeds of the office premises of the Company (In Liqn.) can be initiated.
(D) Such other and further orders and directions as may be considered just and appropriate by this Hon'ble Court.
2. It appears from the record of the report that by an order dated 18.2.2002 passed by this Court in Company Petition No. 310 of 2000, the Company in liquidation came to be wound up. It further appears that by a subsequent order dated 6.5.2002, the order of winding up dated 18.2.2002 came to be stayed and ultimately, the said order of stay was recalled vide order dated 7.4.2003 and the Official Liquidator was appointed. It further appears that by an order dated 4.11.2004 passed by this Court in Official Liquidator Report No.105 of 2003, the Sale Committee came to be constituted under the Chairmanship of the Official Liquidator and other secured creditors for the disposal of the assets and properties of the Company which were in possession of the Official Liquidator pursuant to the order of winding up passed by this Court, as aforesaid.
3. It further appears that an application came to be filed for permitting the Official Liquidator to appoint a Government approved valuer being Company Application No.245 of 2011.
4. By an order dated 22.7.2011 passed by this Court, the Official Liquidator was permitted to do so and accordingly, Mr. P.K. Desai, a Government approved valuer was appointed for the purpose of carrying out valuation of the office premises situated at ground floor, second floor and third floor of the building known as Anurag Commercial Centre, Race Course, Vadodara. Accordingly, the valuer so appointed submitted his report on 1.10.2011 which was placed before the Sale Committee constituted by this Court and it was decided in the meeting of the Sale Committee to fix the upset price of the property of the Company at Rs.1,70,00,000/- and to fix EMD at Rs.20,00,000/-. It appears that thereafter, the Official Liquidator filed another report being Official Liquidator Report No.266 of 2011 with a prayer to fix the aforesaid upset price and EMD and to permit the Official Liquidator to give advertisement in the newspaper as per the decision taken by the Sale Committee in its meeting held on 9.11.2011. This Court by an order dated 2.2.2012 fixed the upset price and EMD as prayed for by the Official Liquidator for the office premises situated on the ground floor, second floor and third floor of the building known as Anurag Commercial Centre. It is pertinent to note at this stage that while passing the order dated 2.2.2012, this Court observed thus:-
So as to remove any doubt, it is clarified that for the purpose of mentioning upset price, the OL shall take into account the rate of Rs.40,000/- per sq.mt as suggested by the valuer and exact measurement and accordingly, the upset price shall have to be mentioned in column-15 of the Valuer s Report
5. It appears that pursuant to the aforesaid direction issued by this Court, the Official Liquidator requested the approved valuer to undertake the work of measurement of the office premises of the Company and accordingly, the Government approved valuer Mr. P.K. Desai submitted the measurement report on 7.4.2012. The said report was also placed before the Sale Committee and the said report was considered by the Sale Committee in its meeting held on 4.5.2012.
6. The Official Liquidator has further averred in the report that in order to execute the orders passed by this Court for the disposal of the properties of the Company in liquidation, the Official Liquidator does not have sufficient funds in the Company s account. It appears from the minutes of the meeting dated 9.11.2011 that the members of the Sale Committee were appraised about the said financial situation of the Official Liquidator and therefore, it was agreed that all the secured creditors will deposit Rs.5,00,000/- (Rupees five lacs only) each with the Official Liquidator so that the work of disposal of the properties can be undertaken by the Official Liquidator. In light of the aforesaid factual background, the present report is filed with the prayers as quoted hereinabove.
7. Heard Mr. Hiren Modi, learned advocate for the Official Liquidator and Ms. Nalini Lodha, learned advocate for respondent No.3. Though served, no one appears for the other respondents.
8. It is clear from the aforesaid that the valuation report which is made the basis of this report is dated 1.10.2011 and the prayers which are prayed for are on the basis of the said report prepared in 2011. Mr. Modi submitted that considering the fact that almost a period of one year has passed, this Court may enhance the upset price as well as EMD accordingly. Mr. Modi further submitted that considering the fact that the Official Liquidator does not have any funds, the secured creditors may be directed to deposit an amount of Rs.5,00,000/- (Rupees five lacs only) each as per the the decision taken in the meeting of the Sale Committee held on 9.11.2011. Ms. Lodha has candidly submitted that this Court may fix the upset price and EMD accordingly. However, respondent No.3 is not ready and willing to deposit an amount of Rs.5,00,000/-. It may be noted that as per the minutes of the Sale Committee dated 9.11.2011 para 5 of the minutes of the meeting reads as under:-
5. The fund position of the Company is Rs.-10,49,466.94 and so the Secured Creditors are requested to deposit an amount of Rs.5,00,000 each to be deposited by 30th November, 2011.
9. In view of the aforesaid decision taken in the meeting of the Sale Committee, the objection raised by Ms. Lodha is not well-founded. The same is contrary to the decision which is collectively taken in the meeting of the Sale Committee dated 9.11.2011. As aforesaid, considering the fact that the upset price is fixed at Rs.1.70,00,000/- and EMD is fixed at Rs.20,00,000/- on the basis of the valuation report dated 2.2.2011, this Court is of the opinion that appropriate rights should be considered while determining the upset price and accordingly, taking the base of the valuation report dated 2.2.2011, the upset price of the properties of the Company in liquidation as enumerated in para 7 at Sr. No.1 would be Rs.1,90,00,000/- and accordingly, EMD would be Rs.22,00,000/-. Accordingly, the schedule programme is as under:-
Sr. No. Particulars Dates 1 Date of advertisement 15.02.2013 2 Date of issue of tender forms On and from 18.02.2013 to 22.02.2013 between 11:30 a.m. to 04:30 p.m. 3 Date of inspection 25.02.2013 4 Last date of receipt of tender 01.03.2013
10. The Official Liquidator shall place offers so received by him by a separate report before this Court within a period of two weeks therefrom.
11. Considering the above, the secured creditors are also directed to deposit an amount of Rs.5,00,000/- (Rupees five lacs only) each as agreed in the meeting of the Sale Committee which has taken place on 9.11.2011 and also on 4.5.2012 within a period of four weeks from today.
12. With the above observations and clarification, the report stands disposed of.
(R.M.CHHAYA, J.) mrp Page 8