Bombay High Court
Kamlesh Mehta vs Mirage Ceramics Pv.Ltd. And Anr. And ... on 5 December, 2019
Author: G. S. Patel
Bench: G.S. Patel
901-CRR341-18+.DOC
Atul
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
COURT RECEIVER'S REPORT NO. 341 OF 2018
IN
COMM ARBITRATION PETITION NO. 294 OF 2019
WITH
COMM DIVISION NOTICE OF MOTION NO. 252 OF 2019
Kamlesh Mehta ...Petitioner
Versus
Mirage Ceramics Pvt Ltd & Anr ...Respondents
AND
COMM DIVISION NOTICE OF MOTION (L) NO. 3135 OF 2018
IN
COMM ARBITRATION PETITION NO. 294 OF 2019
AND
COMM DIVISION NOTICE OF MOTION (L) NO. 3234 OF 2018
IN
COMM ARBITRATION PETITION NO. 294 OF 2019
Mr Cyrus Ardeshir,with Ms Akshita Bhargava & Ms Rukshin
Ghiara, i/b M Mulla Associates, for the Petitioner.
Mr Adharva Dandekar, with Manav Goyal, i/b MDP & Partners, for
Respondent No. 1.
Mr Vishal Ghosalkar, for Respondent No. 2.
Mr Vishal Kanade, i/b Satish Raut, for workers.
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5th December 2019
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901-CRR341-18+.DOC
Mr PK Nardele, OSD to Court Receiver, present.
CORAM: G.S. PATEL, J.
DATED: 5th December 2019 PC:-
1. Pursuant to the order dated 11th November 2019, the Court Receiver called on various authorities as mentioned in that order to send in their claims against the 1st respondent.
2. Mr Ghosalkar for the Abhyudaya Bank, which is a secured creditor has a separate statement estimating that bank's claim at Rs. 23,69,34,034/-. That statement is taken on record and marked "X1" for identifcation with today's date. There is a separate signed statement from the Court Receiver which gives the amounts claimed by various other authorities including income tax, workers' dues, compensation, GST, Mahavitaran at Baramati and the Employees Provident Fund organisation. In this tabulation, which I am retaining on record as "X2" for identifcation with today's date, the Court Receiver has taken an approximate value of Rs. 22 crores as Abhyudaya Bank's claim. With that lower amount, the total computation by the Court Receiver of the amounts claimed by the bank against the 1st respondent is Rs. 49,73,70,462/-. If the present claim by the Abhyudaya Bank (statement "X1") is computed then the claim will go up to nearly Rs. 51 crores or possibly more.
3. This puts the petitioner, Kamlesh Mehta, in a difcult position because he had made then a successful bid of Rs. 40.50 Page 2 of 5 5th December 2019 ::: Uploaded on - 06/12/2019 ::: Downloaded on - 07/12/2019 00:30:08 ::: 901-CRR341-18+.DOC crores for the property seeking to set of his decretal claim against the bid. There is, as Mr Ardeshir points out, with these fgures nothing to set of. He submits that his bid may be allowed to be withdrawn because even if that bid is accepted and he makes payment, there is no possibility of him acquiring title to the property. The diference is not insignifcant -- it is almost Rs. 10 or Rs. 11 crores. I believe Mr Ardeshir is right and the petitioner, since he already holds a decree obtained in a section 9 petition, cannot possibly be expected to throw good money after bad. After all he is a creditor, though with a second charge, and cannot be expected to pour more money with no prospect of receiving an asset in return.
4. I am informed by Mr Ghosalkar that the Abhyudaya Bank has already initiated proceedings under the SARFAESI Act. These were halted because of the appointment of the Court Receiver, and only for that reason. Obviously, that is untenable. The SARFAESI proceedings must continue. Mr Ardeshir suggests that only in order to safeguard the property and to ensure that there are no further complications the Receiver may be continued but without the power of sale so that the property remains custodia legis and third party rights do not intervene. The Receiver himself clarifes that he does not have actual physical possession. That is noted.
5. Consequently, the following order:
(a) The petitioner's bid for Rs. 40.50 crores for the sale of the property is cancelled. He is discharged of any obligations to pay any amount either into Court or Page 3 of 5 5th December 2019 ::: Uploaded on - 06/12/2019 ::: Downloaded on - 07/12/2019 00:30:08 ::: 901-CRR341-18+.DOC otherwise. He is at liberty to pursue his decretal claim in appropriate proceedings.
(b) The Court Receiver appointed earlier will continue for the limited purpose indicated above, i.e. so that the property remains in custodia legis and this will not impede or operate to stay or stall any proceedings, including any auction sale proceedings under the SARFAESI Act. The Receiver is, therefore, only a protective shield to ensure that the property can be put to sale efectively in the SARFAESI proceedings.
(c) To remove any doubt, it is clarifed that the Court Receiver is in symbolic possession (not physical possession) of this property for this limited purpose.
6. It goes without saying that Abhyudaya Bank will follow the necessary procedure in giving notice to all priority claim holders including Revenue. All their contentions are kept open.
7. It is made clear that there has been no adjudication on priority or on the correctness of the claims that are presented before me.
8. The Court Receiver will forward copies of the document marked "X2" to all the Advocates along with the addresses of the authorities concerned.
9. Abhyudaya Bank will bear the costs of the Court Receiver.
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10. The Court Receiver's Report is disposed of in these terms.
11. All other interlocutory proceedings in the Court Receiver's Report are infructuous and are disposed of.
(G. S. PATEL, J) Page 5 of 5 5th December 2019 ::: Uploaded on - 06/12/2019 ::: Downloaded on - 07/12/2019 00:30:08 :::