Calcutta High Court
M/S. Dunlop India Limited vs Salasar Towers Pvt. Ltd on 17 March, 2026
IN THE HIGH COURT AT CALCUTTA
ORIGINAL JURISDICTION
ORIGINAL SIDE
BEFORE:
HON'BLE JUSTICE RAJA BASU CHOWDHURY
IA No.CA/61/2019 (Old No. CA/199/2019)
in
CP/233/2008
In the matter of :
M/s. Dunlop India Limited
And
Salasar Towers Pvt. Ltd.
Versus
The Official Liquidator, High Court, Calcutta
with
IA No. CA/83/2021
in
CP/233/2008
In the matter of :
M/s. Dunlop India Limited
And
M/s. E. V. Mathai & Sons.
Versus
The Official Liquidator, High Court, Calcutta
with
IA No. CA/386/2024
in
CP/233/2008
In the matter of :
M/s. Dunlop India Limited
And
Eyelid Mercantiles Pvt. Ltd.
Versus
The Official Liquidator, Hon'ble High Court At Calcutta & Anr.
For the Eyelid Merchantiles Pvt. : Mr. Anirban Ray, Sr. Adv.
Ltd. Mr. Rupak Ghosh, Adv.
Mr. Siddharth Dey, Adv.
Mr. Ashutosh Singh, Adv.
2 IA No.CA/61/2019
with IA No. CA/83/2021
with IA No. CA/386/2024
in CP 233 of 2008
For the Salasar Towers Pvt. Ltd. : Mr. Ratnanko Banerji, Sr. Adv.
Mr. Soumya Mazumder, Sr. Adv.
Mr. Jishnu Chowdhury, Sr. Adv.
Mr. Ritoban Sarkar, Adv.
Mr. Sounak Mitra, Adv.
Mr. Zulfiquar-ali-al-Quaderi, Adv.
Ms. Akshita Bohra, Adv.
For the Official Liquidator : Mr. Tilak Bose, Sr. Adv.
Mr. Tanushree Dasgupta, Adv.
Heard on : 18.07.2024, 08.08.2024, 22.08.2024,
29.08.2024, 12.11.2024, 17.12.2024,
14.01.2025, 21.01.2025, 27.01.2025,
06.02.2025, 16.07.2025, 03.09.2025,
10.09.2025, 17.09.2025, 21.11.2025,
28.11.2025, 05.12.2025, 12.12.2025
& 17.12.2025.
Judgment on : 17th March, 2026.
RAJA BASU CHOWDHURY, J. :
1. Records reveal that C.P. 233 of 2008 (M/s. Dunlop India Limited v. M/s. E. V. Mathai & Sons.), along with connected applications which had been pending for sometime had since been assigned before this Court on 18th April, 2024. Following the same, the above company petition being C.P. 233 of 2008 along with connected applications being C.A. 61 of 2019, C.A. 83 of 2021 and C.A. 386 of 2024 have been taken up for consideration by this Court.
2. C.A. 61 of 2019 is an application filed by Salasar Towers Pvt. Ltd., (in short, Salasar), inter alia, praying for a direction upon the official liquidator to sell 50 per cent of the proportionate undivided share in the land situated in the Kings Court, 46B, Chowringhee Road, Kolkata - 3 IA No.CA/61/2019
with IA No. CA/83/2021 with IA No. CA/386/2024 in CP 233 of 2008 700071, along with twelve (12) flats being flat nos. 1, 5, 8, 9, 11, 12, 14, 17, 18, 19, 21 and 24, with eleven (11) garages, fourteen (14) servants' quarters (hereinafter referred to the "said property"), to Salasar at fair value with a further direction upon the official liquidator to transfer and/or convey 50 per cent of the said property to the extent owned by Dunlop India Limited (in liquidation) under a private treaty in favour of the Salasar pursuant to two several representations dated 15th July, 2019 and 19th August, 2019; as also for a direction upon the official liquidator to complete the entire process of sale of the said property within a particular period as noted in the Judges Summons taken out on 30th September, 2019. In this context, it would also be relevant to note that originally on 15th May, 1953, by a deed of conveyance, Dunlop Rubber Company (India) Limited, later renamed as Dunlop India Limited (now in liquidation), along with Guest Keen Williams Ltd., (in short, GKW) acquired the premises at 46B, Chowringhee Road, Kolkata from Nawn Estates Limited (hereinafter referred to as the "said premises"). On 18th July, 1953 an agreement was executed between Dunlop India Limited (now on Liquidation) and GKW whereby the parties had agreed to certain terms and conditions of ownership and transferability of shares, including a pre-emption clause which provided that no third- party shall be permitted to acquire any share or interest in the said premises, and if any of the parties were desirous of selling the shares, in such case, the other party shall have the first option of purchasing the 4 IA No.CA/61/2019 with IA No. CA/83/2021 with IA No. CA/386/2024 in CP 233 of 2008 shares. In the year 2001, GKW which had by then been renamed as GKW Ltd., entered into nine (9) separate agreements for sale with different companies including Salasar Towers Pvt. Ltd., for sale of nine (9) flats along with nine (9) garage spaces and nine (9) servants quarters in respect of its 50 per cent share of the said premises. Later on 7th October, 2002, GKW entered into three (3) separate agreements for sale with separate companies for sale of three (3) flats two (2) garages and five (5) servants quarters in respect of its 50 per cent share of the said premises. Possession of the units agreed to be sold was handed over to the agreement holders upon payment of full consideration amount.
3. In the interregnum, Dunlop India Limited became sick, within the meaning of Sick Industrial Companies (Special Provisions) Act, 1985 and was referred to the Board of Industrial and Financial Reconstruction (in short "BIFR"). Subsequently, in the liquidation proceedings that followed, by a letter dated 17th February, 2003, State Bank of India had approached the Appellate Authority of BIFR (AAIFR) for approving the reserve price of eight properties of the company in liquidation including 50 per cent share of the said premises owned by Dunlop India. By an order dated 25th February, 2003, the AAIFR in a proceeding of the company in liquidation directed that the properties of the company in liquidation be disposed of expeditiously and the Assets Sale Committee was authorised to accept bids and complete the sale of properties of the company in liquidation which included the said premises. Still later on 5 IA No.CA/61/2019 with IA No. CA/83/2021 with IA No. CA/386/2024 in CP 233 of 2008 15th September, 2003, by an order passed by the Hon'ble Company Court in a separate company proceedings being C.P. 214 of 2003, the scheme of amalgamation between Salasar Towers Pvt. Ltd. and the other agreement holder companies noted that all the rights and liabilities which had accrued under the respective agreement in favour of the agreement holder companies stood transferred to Salasar Towers Pvt. Ltd. The aforesaid order has, however, not been placed for consideration before this Court. When the aforesaid application being C.A. 61 of 2019 came up for consideration before a Coordinate Bench of this Court on 3rd February, 2021, the Coordinate Bench by an order of even date noting that Dunlop had huge debts and innumerable creditors, both secured and unsecured, and also noting that in public interest if the properties of Dunlop are sold, the same should be sold through public auction so that the highest possible price can be fetched, for the benefit of its creditors, directed the official liquidator to set in motion the process of sale of property in question. It was also made clear by such order that once, offers are received from the intending purchasers, the official liquidator and the Court would know the highest price obtainable from the property and if the Salasar can match the highest price then Salasar's claim can be considered favourably in view of the right of pre- emption that exists in its favour. By such order, the official liquidator was directed to obtain valuation report of the property in question from recognized valuer before he can proceed any further. 6 IA No.CA/61/2019
with IA No. CA/83/2021 with IA No. CA/386/2024 in CP 233 of 2008
4. Records would reveal that the official liquidator after obtaining the valuation report, had filed the same in Court on 6th September, 2021 and it is only thereafter, the application being C.A. 83 of 2021 was filed by Eyelid Merchantiles Private Limited (in short, Eyelid) for setting aside the order passed by this Court directing the official liquidator to proceed with the sale of property to the extent of half share owned by the Dunlop India Limited. By an order dated 19th October, 2023, the Coordinate Bench noting that Eyelid apart from filing the application had done very little, had held that Eyelid cannot stand in the way of stopping sale of property. The Eyelid's right at best would be to participate in the sale of the property and match the highest bid along with Salasar and accordingly, the Court held that since the Eyelid was unlikely to be prejudiced, permitted Eyelid to participate as bidder in the sale of the property, and directed the official liquidator to expeditiously process the sale of the assets of the company in liquidation.
5. The aforesaid order was carried in appeal, which was registered as APOT 414 of 2023. By an order dated 2nd November, 2023, the Division Bench of this Court noting that sufficient protection has been afforded in terms of Rule 272 of the Company Court Rules, 1969 which recognizes that the sale cannot be concluded unless it is confirmed by the Court and also noting that the application being C.A. 83 of 2021 was pending, had disposed of the said appeal by requesting the learned Company Judge to take up the hearing of the application being C.A. 83 of 2021 pending at 7 IA No.CA/61/2019 with IA No. CA/83/2021 with IA No. CA/386/2024 in CP 233 of 2008 the behest of Eyelid before confirming the sale proposed to be held on the next date.
6. Records would also reveal that another appeal was filed by Kanti Commercials Private Limited, a contributory of the company in liquidation, challenging the order dated 19th October, 2023, on the ground that the said order was passed without affording the appellant a right to represent.
7. The aforesaid appeal finally came to be disposed of by a judgment and order dated 19th December, 2023, inter alia, by observing that since essentially the challenge in the said appeal was in respect of the valuation made in the year 2000 pursuant to the sale notice, the appeal Court directed the official liquidator to have a fresh valuation of the property in question by a reputed and recognized valuer, and thereafter to publish the sale notice in the mode and manner provided therein. It was further provided that the matter shall thereafter, be placed before the Company Court by the official liquidator after process is complete, for confirmation of sale on the date to be specified in the sale notice.
8. Records would also reveal that Eyelid had since filed a suit before the learned 5th Bench, City Civil Court at Calcutta, which was registered as T.S. no. 2382 of 2023 against Salasar, inter alia, for a declaration of permanent and mandatory injunction, on the strength of an agreement for sale dated 25th September, 2006 in respect of the Dunlop's share in the said premises. Although, an order of status quo was passed as would 8 IA No.CA/61/2019 with IA No. CA/83/2021 with IA No. CA/386/2024 in CP 233 of 2008 be evident from order dated 1st December, 2023, on an appeal being filed from such order, which was registered as FMAT 572 of 2023, the said order was set aside and the matter was remanded back with a direction to decide the plaintiff's injunction application expeditiously. Pursuant to the aforesaid order, the injunction application was taken up for final consideration on 9th February, 2024 and the same was rejected on the ground that Eyelid as plaintiff had no better instrument other than the unregistered agreement for sale which does not confer any right on it, even by any stretch of imagination, to exercise right in terms of reasonably constructed agreement dated 18th July, 1953 entered between Dunlop and GKW.
9. Records would also reveal that an application was filed by Kanti Commercials Private Limited for setting aside the sale notice dated 8th January, 2024 which was registered as C.A. 294 of 2024. The said application was, however, dismissed by an order dated 28th February, 2024 with costs of Rs. 3 lakhs by holding that the Court does not find any infirmity in the valuation of Rs. 29,44,00,000 put in the impugned sale notice and that it also sees no reason either to delay or interfere with the process of sale of the concerned property, namely, Kings Court, 46B, Chowringhee Road, Kolkata and that the applicant had failed to establish any basis for such interference.
10. Still later C.A. 386 of 2024 has been filed by Eyelid, inter alia, seeking for a leave to institute a suit and seeks specific performance of 9 IA No.CA/61/2019 with IA No. CA/83/2021 with IA No. CA/386/2024 in CP 233 of 2008 the agreement for sale executed in its favour by the company in liquidation in respect of the said property. The Judges Summons has been taken out on 7th December, 2024.
11. The above applications are all contested. Affidavits have already been exchanged.
12. Mr. Roy, leaned Senior Advocate appearing for the Eyelid in support of C.A. 83 of 2021 and C.A. 386 of 2024 would insist that its claim is based on an unregistered agreement for sale dated 25th September, 2006 entered into between Dunlop and the applicant, for sale of the 50 per cent share of the subject property. The applicant has paid a total consideration of Rs. 8 Crores to the company in liquidation. In support of this aforesaid contention, amongst other documents, money receipts, a letter dated 27th December, 2006 issued by Dunlop India Limited has been placed. The letter dated 25th September, 2006 issued by the company liquidation intimating Talbot and Company that their portion of the property at Kings Court has been sold in favour of the Eyelid and with a further request upon the said Talbot and Company to make future correspondences with Eyelid has also been relied on. Certain money receipts issued by Talbot and Company and Electricity Bills have also been disclosed. It has, however, been stated since, the subject property has now become onerous, the same should be disclaimed in favour of the Eyelid. Certain judgments have been relied on at the time of argument by Mr. Roy, while moving the C.A. 83 10 IA No.CA/61/2019 with IA No. CA/83/2021 with IA No. CA/386/2024 in CP 233 of 2008 of 2021, however, subsequent to the application being C.A. 386 of 2024 being moved, such judgments have not been pressed. To maintain the records, the said judgments are noted below:
i. In re Siddhpur Mills Co. Ltd. Ex parte Relliance Textile Industries Ltd., reported in (1987) 61 Comp Cas 756. ii. Farokh S. Todywalla v. Official Liquidator of Vitta Mazda Ltd., reported in 2005 SCC OnLine Guj 263. iii. Dunlop India Limited v. Container Corporation of India & Anr., by High Court of Judicature at Madras on 19th December, 2007 in W.P. No. 24422 of 2006. iv. M/s. K & Co., a Partnership firm rep. by its Constituted Attorney Shri J. Dhamija v. M/s. Aruna Sugars and Enterprises Ltd., reported in 1998-2-L.W. 725. v. In re: J. Sen Gupta (Private) Ltd., (In Liquidation), reported in 1961 SCC OnLine Cal 143.
vi. Bhoop Alleged Son of Sheo v. Matadin Bhardwaj (Dead) by LRS., reported in (1991) 2 SCC 128.
vii. NGEF Ltd. v. Chandra Developers (P) Ltd. & Anr., reported in (2005) 8 SCC 219.
13. Insofar as C.A. 386 of 2024 is concerned, it is submitted that though the official liquidator has raised a question of limitation while filing its affidavit-in-opposition, such stand of the official liquidator is without considering the terms of the agreement. It is submitted that in 11 IA No.CA/61/2019 with IA No. CA/83/2021 with IA No. CA/386/2024 in CP 233 of 2008 terms of the agreement, Eyelid had a right to call upon the vendor i.e. Dunlop to execute such deed of conveyance. As per the terms of the agreement the company in liquidation was bound to execute the deed of conveyance on demand. Eyelid was all along ready and willing to act in terms of the agreement. It is submitted that either this court adjudicates the rights of Eyelid or in in alternative grants leave to institute suit for specific performance by allowing C.A. 386 of 2024. The issue of specific performance raised by Eyelid requires to be adjudicated either before the Company Court or leave be granted to file a suit before a civil forum, before this court can proceed further.
14. Mr. Banerji, learned Senior Advocate has appeared on behalf of Salasar and has taken this Court through the documents on record including several orders. He claims that the right of Salasar to participate in the auction and match the price has already been recognized by the Coordinate Bench of this Court vide order dated 3rd February, 2021. On the issue of Eyelid's claim in respect of 50 per cent of Kings Court, though Eyelid claims that a sum of Rs. 8 Crores was paid to the company in liquidation under an agreement for sale and though, certain maintenance charges of the property has been shown to have been made, the documents relied on by Eyelid to establish the above includes an unregistered and insufficiently stamped document of the year 2006. No explanation has been provided as to why specific performance of this particular agreement had not been sought for 12 IA No.CA/61/2019 with IA No. CA/83/2021 with IA No. CA/386/2024 in CP 233 of 2008 earlier. On the own showing of Eyelid, it did not make payment of the consideration and the transactions relied on by Eyelid are between India Finance Private Limited and Dunlop. Eyelid and India Finance Private Limited are both group companies of Dunlop, and the transaction disclosed by Eyelid is proof of the factum of money being siphoned though a circular transaction between Dunlop, Eyelid and India Finance Private Limited. To substantiate the same, balance sheet of Dunlop from 2010-11 mentioning Dadar Properties and Finance Private Limited, Eyelid and India Finance Private Limited as associate/ group companies of Dunlop, have been relied on. The financial statement of Eyelid mentions Dadar Properties and Finance Pvt Limited to be holding company of Eyelid. The View Director Master Data which shows various group companies of Dunlop in the same frame have also been disclosed in the affidavit in opposition filed by Salasar in connection with C.A. 83 of 2021, which has also been relied on by Mr. Banerji. This apart Mr. Banerji has also by placing reliance on the order dated 19th December, 2023 passed by the Division Bench of this Court contended that by the aforesaid order the Division Bench has cast serious doubts as regards the claim of Eyelid over in respect of the portion of the property in question. The Learned City Civil Court had also in T.S. 2382 of 2023 refused to pass any order of injunction so as to restrain Salasar from exercising any right of pre-emption. He also submits that this Court in exercise of its jurisdiction under Companies Act should not permit 13 IA No.CA/61/2019 with IA No. CA/83/2021 with IA No. CA/386/2024 in CP 233 of 2008 execution and registration of the purported deed of conveyance in the year 2026 on the basis of unregistered and insufficiently stamped document dated 25th September, 2006. In support of his contention that an unregistered document does not confer title reliance has been placed on the following authorities:-
i. Suraj Lamp and Industries Private Limited v. State of Haryana and Anr., reported in (2012) 1 SCC 656, ii. Ram Baran Prasad v. Ram Mohit Hazra & Ors., reported in (1967) 1 SCR 293, iii. Narandas Karsondas v. S.A. Kamtam & Anr., reported in (1977) 3 SCC 247, iv. Kanta Devi Berlia v. Mohit Jhunjhunwalla & Ors., reported in 2006 SCC OnLine Cal 91, v. Ramesh Chand v. Suresh Chand & Anr. in Civil Appeal No. 6377 of 2012 (Supreme Court).
15. He has also attempted to distinguish the judgments relied on by Eyelid. He also submits that this Court should not grant any leave at this stage to Eyelid to institute a suit for specific performance as the same is ex facie barred by limitation.
16. Mr. Tilak Bose, learned senior advocate appearing for the official liquidator, has however, at the very outset placed before this Court the provisions of Section 535 of the Companies Act to highlight the 14 IA No.CA/61/2019 with IA No. CA/83/2021 with IA No. CA/386/2024 in CP 233 of 2008 circumstances when such provision can be invoked. To morefully appreciate the same, the aforesaid Section is extracted hereinbelow:
"DISCLAIMER OF ONEROUS PROPERTY IN CASE OF A COMPANY WHICH IS BEING WOUND UP.
535. (1) Where any part of the property of a company which is being wound up consists of -
(a) land of any tenure, burdened with onerous covenants ;
(b) shares or stock in companies ;
(c) any other property which is unsalable or is not readily saleable, by reason of its binding the possessor thereof either to the performance of any onerous act or to the payment of any sum of money; or
(d) unprofitable contracts ;
the liquidator of the company, notwithstanding that he has endeavoured to sell or has taken possession of the property, or exercised any act of ownership in relation thereto, or done anything in pursuance of the contract, may, with the leave of the Court and subject to the provisions of this section, by writing signed by him, at any time within twelve months after the commencement of the winding up or such extended period as may be allowed by the Court, disclaim the property :
Provided that, where any such property has not come to the knowledge of the liquidator within one month after the commencement of the winding up, the power of disclaiming the property may be exercised at any time within twelve months after he has become aware thereof or such extended period as may be allowed by the Court. (2) The disclaimer shall operate to determine, as from the date of disclaimer, the rights, interest, and liabilities of the company, and the property of the company, in or in respect of the property disclaimed, but shall not, except so far as is necessary for the purpose of releasing the company and the property of the company from liability, affect the rights or liabilities of any other person. 15 IA No.CA/61/2019
with IA No. CA/83/2021 with IA No. CA/386/2024 in CP 233 of 2008 (3) The Court, before or on granting leave to disclaim, may require such notices to be given to persons interested, and impose such terms as a condition of granting leave, and make such other order in the matter as the Court thinks just.
(4) The liquidator shall not be entitled to disclaim any property in any case where an application in writing has been made to him by any person interested in the property requiring him to decide whether he will or will not disclaim, and the liquidator has not, within a period of twenty-eight days after the receipt of the application or such extended period as may be allowed by the Court, given notice to the applicant that he intends to apply to the Court for leave to disclaim; and in case the property is a contract, if the liquidator, after such an application as aforesaid, does not within the said period or extended period disclaim the contract, he shall be deemed to have adopted it. (5) The Court may, on the application of any person who is, as against the liquidator, entitled to the benefit or subject to the burden of a contract made with the company, make an order rescinding the contract on such terms as to payment by or to either party of damages for the non-performance of the contract, or otherwise as the Court thinks just; and any damages payable under the order to any such person may be proved by him as a debt in the winding up.
(6) The Court may, on an application by any person who either claims any interest in any disclaimed property or is under any liability not discharged by this Act in respect of any disclaimed property, and after hearing any such persons as it thinks fit, make an order for the vesting of the property in, or the delivery of the property to, any person entitled thereto or to whom it may seem just that the property should be delivered by way of compensation for such liability as aforesaid, or a trustee for him, and on such terms as the Court thinks just ; and on any such vesting order being made, the property comprised therein shall vest accordingly in the person therein named in that behalf without any conveyance or assignment for the purpose :
16 IA No.CA/61/2019
with IA No. CA/83/2021 with IA No. CA/386/2024 in CP 233 of 2008 Provided that, where the property disclaimed is of a leasehold nature, the Court shall not make a vesting order in favour of any person claiming under the company, whether as under-lessee or as mortgagee or holder of a charge by way of demise, except upon the terms of making that person -
(a) subject to the same liabilities and obligations as those to which the company was subject under the lease in respect of the property at the commencement of the winding up; or
(b) if the Court thinks fit, subject only to the same liabilities and obligations as if the lease had been assigned to that person at that date;
and in either event (if the case so requires) as if the lease had comprised only the property comprised in the vesting order; and any mortgagee or under-lessee declining to accept a vesting order upon such terms shall be excluded from all interest in and security upon the property, and, if there is no person claiming under the company who is willing to accept an order upon such terms, the Court shall have power to vest the estate and interest of the company in the property in any person liable, either personally or in a representative character, and either alone or jointly with the company, to perform the lessee's covenants in the lease, freed and discharged from all estates, encumbrances and interests created therein by the company. (7) Any person injured by the operation of a disclaimer under this section shall be deemed to be a creditor of the company to the amount of the compensation or damages payable in respect of the injury, and may accordingly prove the amount as a debt in the winding up."
17. He has next placed before this Court the order dated 8th May, 2017 to highlight that it is pursuant to such order that the official liquidator was activated to take actual possession of the properties of the company in liquidation. Following the aforesaid, the official 17 IA No.CA/61/2019 with IA No. CA/83/2021 with IA No. CA/386/2024 in CP 233 of 2008 liquidator had visited the premises no. 46B, Chowringhee Road, Kolkata on 4th October, 2018 and had noted that the said property is a five (5) storied building on a plot of land measuring 3 bighas, with garages and staff quarters. It is during such visit one, Mr. Manik Chand Dwark and one, Mr. Alok Banerjee came on the spot and objected to the taking over possession of the entire premises by demanding that 12 flats together with garages and servants quarters in the said building along with undivided share of land was owned by Salasar Towers Pvt. Ltd. whom they represent. Copy of the registered conveyance dated 31 st March, 2008 together with copies of the municipal tax receipts were also made over to the official liquidator. In the circumstances as aforesaid, the flat nos. 1, 5, 8, 9, 11, 12, 13, 14, 17, 18, 19 and 21 have only been taken into custody with undivided share of land by putting new padlocks and official seal together. Signature of both official liquidator and the names of the others present appear on the minutes of the meeting. According to such report, presence of Eyelid was not noted at the time of taking over procession by the official liquidator. He has also relied on a letter dated 27th July, 2018 issued by the Kolkata Municipal Corporation in response to a query from the official liquidator intimating that apart from the name of Dunlop Rubber Company Limited, M/s. Guest Keen Williams Ltd., and the name of Salasar Towers Pvt. Ltd. appear in the records of the Municipality as recorded owners in respect of such property. He has also relied on a letter for direction taken out by the 18 IA No.CA/61/2019 with IA No. CA/83/2021 with IA No. CA/386/2024 in CP 233 of 2008 official liquidator for the said application to be taken on record a monthly report January and February 2020, and for leave to take over the assets and properties of the company in liquidation at Worli, Mumbai, Attapattu at Ambattur, Chennai, and Sahaganj at Hooghly, which was affirmed by the Deputy Official Liquidator on 5th March, 2020. By an order dated 8th January, 2021, a Coordinate Bench of this Court taking note of the averments made in the affidavit in support of the application for directions had allowed prayer 'A' of the summons for direction dated 8th December, 2020 by noting that prayer-B of summons shall be considered in a separate application. By referring to the above report, he has submitted that the official liquidator upon receipt of confirmation by the Kolkata Municipal Corporation that the property at 62A, Mirza Ghalib Street, Kolkata - 700016 is owned by the company in liquidation has taken possession of such property. The report records that the said property has also been taken possession by the official liquidator.
18. He has also drawn the attention of this Court tot the unregistered agreement dated 25th September, 2006 and contends that as per clause 3 of such agreement, execution of conveyance is simultaneously with or before handing over possession of the said unit to the purchaser. Having regard thereto, the case made out by Eyelid along with the surrounding circumstances and the absence of Eyelid at the time of taking possession does not appear to be acceptable. By referring to the bank 19 IA No.CA/61/2019 with IA No. CA/83/2021 with IA No. CA/386/2024 in CP 233 of 2008 statement, he had tried to highlight that the money which was transferred from Dunlop to India Finance was further routed from India Finance to Coral ENVT involving Eyelid. The same would make out a case of money laundering involving Eyelid.
19. He has also relied on the invoices issued by Shiva Sakti Security Services, which has been engaged by the official liquidator to secure portion of premises no. 46B, Chowringhee Road, Kolkata, which has been taken possession by the official liquidator. According to Mr. Bose, the provisions of Section 535 of the Companies Act cannot authorise the official liquidator to execute any deed of conveyance. Further since, an application under Section 446 of the Companies Act seeking leave is pending the aforesaid prayers are wholly illusory and have been rendered infructuous.
20. Having heard the learned advocate appearing for the respective parties, I notice that though this Court having regard to the judgment delivered by the Division Bench on 2nd November, 2023 in APOT 414 of 2023 is obliged to decide on the application of Eyelid before confirming the sale proposed, the matter has, however, travelled further. In fact by a subsequent order dated 19th December, 2023 passed by the Division Bench in a connected matter, on an appeal filed by the contributory from the auction notice issued by the official liquidator, wherein Eyelid was represented, despite noting the contention of Eyelid, granted leave both to Eyelid and Salasar to participate in the auction sale and submit 20 IA No.CA/61/2019 with IA No. CA/83/2021 with IA No. CA/386/2024 in CP 233 of 2008 their bids, if so advised, without prejudice to their rights and contentions with a further direction upon the official liquidator to publish a sale notice in the website where offers can be submitted upon obtaining fresh valuation of the property on or before 10th January, 2024.
21. Eyelid has since taken out the application being C.A. 386 of 2024 and has sought for leave to institute a suit for specific performance of an agreement for sale dated 25th September, 2006. Having thus, proceeded with such application, the prayer made in C.A. 83 of 2021, which not only call upon the official liquidator to disclaim the undivided half share of the property but also seek for a direction upon the official liquidator to execute registered deed of conveyance in respect of the half share at 46B, Chowringhee Road, Kolkata, in favour of Eyelid, in my view, cannot survive. This apart, in order to insist for a prayer for disclaimer, Eyelid has to establish its right at the first instance over in respect of property in question. Admittedly, when the official liquidator had visited the property in question, Eyelid was nowhere to be seen. The municipal records also do not recognise the presence of Eyelid. Though, the presence of Salasar is noted. Eyelid relies on an unregistered agreement for sale. It is well settled that an unregistered agreement for sale does not confer title. The judgment delivered in the case of Kanta Devi Berlia (supra), Suraj Lamp & Industries (supra), Ram Baran Prasad (supra), Narandas Karsondas (supra) and Ramesh Chand (supra) are 21 IA No.CA/61/2019 with IA No. CA/83/2021 with IA No. CA/386/2024 in CP 233 of 2008 relied on. This apart, though, Eyelid has claimed the agreement for sale is backed up with a consideration of Rs. 8 Crores, such payment on the own showing of Eyelid was not directly paid by Eyelid. The transactions relied on as has been disclosed in an affidavit in reply affirmed by one Ritabrata Adak on 16th March, 2022 would demonstrate that payments have been made from India Finance Limited through a series of transaction involving Dunlop to India Finance as well. Mr. Banerji has however, drawn the attention of this court to the bank statements and the balance sheet of Dunlop and has attempted to highlight that these transactions are circular transactions, which had been entered with the object of siphoning away funds from Dunlop. Although, the Eyelid has relied on a document dated 3rd August, 2006 authorising sale/disposal of the companies non-core assets at Kings Court, 46B, Chowringhee Road, Kolkata, however, the authenticity and/or validity of such document is also not without doubt especially having regard to the disclosure made by the official liquidator that at the time of taking over possession of the property of Dunlop, Eyelid was nowhere to be seen.
22. This apart, as has been rightly pointed out by Mr. Banerji, the balance sheet of Dunlop for 2010-11 mentions Dadar properties and Finance Limited, Eyelid and India Finance Limited as associate/group companies of Dunlop India Limited. The same read with Form No. AOC- 4 for filing financial statement of Eyelid under Rule 12(1) of the Companies (Accounts) Rules, 2014 mentions Dadar Properties and 22 IA No.CA/61/2019 with IA No. CA/83/2021 with IA No. CA/386/2024 in CP 233 of 2008 Finance Private Limited to be the holding company of Eyelid, and the printout of the View Director Master Data also shows the group companies of Dunlop in the same frame, which includes Dadar Properties and Finance Pvt. Ltd., and Eyelid Merchantile Pvt. Ltd. Interestingly, when the challenge to the winding up order was turned down in A.P.O. No. 50 of 2013, by order dated 2nd May, 2013, the Hon'ble Division Bench had noted that when the company was sick and the matter was pending before the BIFR or so soon thereafter four valuable properties of the company in liquidation estimated Rs.2300 Crores were surreptitiously transferred. To morefully appreciate the same, the relevant portion of the above order is extracted hereinbelow:
" BACKDROP:
Dunlop India Ltd. was a Tyre manufacturing Company. It changed hands from time to time. Ultimately, the company came within the fold of Chabarias, the liquor baron. The company became sick and was referred to the Board of Industrial and Financial Reconstruction (hereinafter referred to as 'BIFR'). While the proceeding was pending before the BIFR, Ruias came in control of the company. Ruias claimed, they got control through purchase of controlling block of shares. Be that as it may, Ruias came in control of both the factories at Sahaganj in the State of West Bengal and Ambattur in the State of Tamil Nadu. Intially Ruias opened the Sahaganj factory and started manufacturing process at least, it was claimed so. Ambattur unit was however functioning. It now appears, during the period when matter was pending before the BIFR or so soon thereafter four valuable properties having an estimated value of Rs.2300 crores were surreptitiously transferred. The management wanted to avoid the restrictions of Section 22 of the Sick Industrial Companies Act, 1985, window dressed the accounts showing 23 IA No.CA/61/2019 with IA No. CA/83/2021 with IA No. CA/386/2024 in CP 233 of 2008 the net worth of the company positive and thus came out of the fold of BIFR. The management neither paid the creditors nor the workers. Both the units were shut down in course of time. The creditors started making application for winding up since 2008. There had been earlier winding up petitions that were kept in abeyance in view of pendency of the proceeding before the BIFR. For some time the company also enjoyed the benefit of relief undertaking under the State law. On a sum total of the situation, the company left no stone unturned keeping the creditors at bay. The workers were given false promises. In the hope that the factory would be reopened, the workers did not raise any serious issue pressing their long-standing dues. One of the creditors, Madura Coats Ltd. Ltd. filed application for appointment of provisional Arbitrator. By a judgment and order dated March 26, 2012 the learned Judge appointed Official Liquidator as the provisional liquidator and asked the provisional liquidator to take steps as against the fraudulent transfer of the immovable properties referred to above. The Division Bench termed it as Special Officer, however, did not disturb the process of inventory. The company ultimately faced the final hearing of the winding up proceeding."
23. The above casts serious doubts as regards the validity of the transaction and the unregistered agreement dated 25th September, 2006. I may note that Mr. Ray has placed strong reliance on the judgement delivered in the case of Siddhpur Mills (supra) has contended that the winding up order only relates back to the commencement of the winding up proceedings to the date of presentation of the petition and that any transfer made by the company in liquidation after the presentation would be void unless directed by the Court, however in the instant case, since the transactions are much 24 IA No.CA/61/2019 with IA No. CA/83/2021 with IA No. CA/386/2024 in CP 233 of 2008 prior to the winding up order which was passed on 31st January, 2013 which was later confirmed by the Appeal Court on 2nd May, 2013, the validity of the transaction cannot be doubted and that the transaction requires protection of equitable consideration. However, since, at this stage, Eyelid only seeks leave to institute a proceeding and establish its right in terms of the provisions contained in Section 446 of the Companies Act, I am of the view that it shall not be prudent to deny such leave to Eyelid without in any way conferring any right in favour of Eyelid. Before concluding, I must note that in C.A. 83 of 2021 Eyelid has also sought for orders for quashing the sale notice dated 9th September, 2021 and for recalling of the order dated 6th September, 2021. Since, by an order dated 19th December, 2023, the Division Bench of this Court has already directed the official liquidator to publish a fresh sale notice by carrying out a fresh valuation and by granting liberty to both Eyelid and Salasar to participate in the auction sale upon such revaluation being obtained and upon publishing of fresh sale notice, and upon offer being submitted, a report has been filed by the official liquidator, I am of the view nothing survives in prayers 'C' and 'E' of the application being C.A. 83 of 2021 as the aforesaid order dated 19th December, 2023 was passed in presence of Eyelid. Having regard thereto, the application being C.A. 83 of 2021 stands disposed of without any order. C.A. 386 of 2024 is allowed by granting liberty to Eyelid to institute a suit or proceeding to establish its rights in accordance with law, if so advised. 25 IA No.CA/61/2019
with IA No. CA/83/2021 with IA No. CA/386/2024 in CP 233 of 2008
24. Insofar as C.A. 61 of 2019 is concerned, having regard to the order passed on 3rd February, 2021, only in the event Salasar is able to match the price bid of the highest bidder that the matter would require further consideration.
25. Considering the above and noting from the report of the official liquidator dated 8th February, 2024 that the official liquidator in terms of the order dated 19th December, 2023 has taken steps for auction sale of the property by e-auction conducted on 8th February 2024 through designated e-auctioner of Railtel Corporation of India Pvt. Ltd., it appears that it has received an offer and since, the above applications are now disposed of, let C.P. 233 of 2008 be taken up for further steps in relation to the sale notice dated 8th January, 2024. Accordingly, list C.P. 233 of 2008 on 20th March, 2026, for considering the report of the official liquidator regarding confirmation of sale. Urgent photostat certified copy of this order, if applied for, be made available to the parties, on priority basis, upon compliance of all formalities.
(RAJA BASU CHOWDHURY, J.)