Delhi High Court
Re-M/S Ganga Automobile Ltd. vs - on 20 March, 2017
Author: Siddharth Mridul
Bench: Siddharth Mridul
$~53
IN THE HIGH COURT OF DELHI AT NEW DELHI
Pronounced On: 20.03.2017
+ CO.PET. 161/1997, CO.APPL.1231/2000, 311/2012, 616/2012,
617/2012, 618/2012, 619/2012, 622/2012, 1222/2014, 1717/2015,
2465/2015, 2466/2015, 534/2016 & 535/2016
RE-M/S GANGA AUTOMOBILE LTD. ..... Petitioner
Through: Ms. Kajal Chandra, Advocate with
Ms. Swati Sinha and Ms. Prerna
Chopra, Advocates for the petitioners
Mr. Parag Tripathi, Sr. Advocate with
Mr. Rajneesh Sharma, Mr. Akshay
Ringe, Ms. Kalyani Lal and Mr.
Sangram Singh, Advocates
Mr. Harish Malhotra, Sr. Advocate
with Mr. Tarun Singh, Advocate for
M/s Goyal M.G. Gases (P) Ltd. and
M/s Poysha Oxygen (P) Ltd.
Mr. Sudhir Nandrajog, Sr. Advocate
with Mr. D.K. Rustagi and Mr.
Mayank Rustagi, Advocates for DAL
Mr. Abhishek Bhardwaj, Advocate for
MSIL in CO.APPL.1231/2000
Mr. Alok Bachawat and Ms. TAvishi
Chandra, Advocates for Mr. Ramesh
Suri, Contemnor
Mr. Raghvendra Singh, Advocate for
Income Tax Department
CO.PET.161/1997 Page 1 of 1
CORAM:
HON'BLE MR JUSTICE SIDDHARTH MRIDUL
SIDDHARTH MRIDUL, J (ORAL)
1. Learned counsel appearing on behalf of the Income Tax Department states that an affidavit, authored by Ms. Anita Meena, the Deputy Commissioner of Income Tax, Circle-10(1), C.R. Building, New Delhi has been filed on 17.03.2017, in terms of the directions issued by this Court by way of order dated 08.03.2017. However, the same is not on record.
2. Counsel appearing on behalf of the Income Tax Department has handed over copies of the said affidavit dated 17.03.2017, in Court today.
3. Counsel appearing for the other parties pray for time to file a response thereto.
4. Let the response be filed within a period of four weeks from today with an advance copy to counsel appearing on behalf of the Income Tax Department, who may file rejoinder thereto, if any, before the next date of hearing.
5. The present petition has had a chequered history as would be evident from the following recital of the procedural facts.
6. A perusal of the decision of the Division Bench, dated 22.08.2013, in CO.APPL.26/2011, CO.APPL.7989/2011, titled as "M/s Taneja Developers and Infrastructure Ltd. & Anr. vs. The Official Liquidator and Ors.", and in CO.APPL.27-29/2011, 8728/2012, 8729/2012, 8730/2012 and 8731/2012, titled as "The Delhi Automobiles Ltd. vs. The Official Liquidator and Anr.", would bring to light the following facts and circumstances:
CO.PET.161/1997 Page 2 of 2a) A petition for winding up was filed on behalf of M/s Rocksmelt Company (India), against M/s Ganga Automobiles Limited (hereinafter referred to as 'GAL'), in the year 1997.
b) On 02.02.1998, during the pendency of the winding up proceedings, Mr. G.S. Suri, father of Mr. Ashwin Suri, Managing Director of GAL, appeared before the Company Court and offered to pay the unsettled dues of GAL, in his capacity as the Chairman of Delhi Automobiles Limited (hereinafter referred to as 'DAL'), by selling the property situated at 1, Sikandra Road, New Delhi (hereinafter referred to as the 'subject property'). The offer was accepted by the Court, which then ordered that the subject property would be deemed to be attached and sold under the supervision of this Court, if not sold within a period of three and a half months. This was expressly recorded by the order of the Court in the winding up proceedings as follows:
"02/02/1998 "............It is submitted by the learned counsel for the respondent that M/s Delhi Automobiles Limited have immovable property namely, 1, Sikandara Road, New Delhi. According to the learned counsel for the respondent the property is extremely valuable. He further states that efforts are being made to sell the property and in case the property is sold, the money will first be utilized for meeting the amount due to the creditors who have filed petitions in this Court. He further states that the Chairman of M/s Delhi Automobiles Limited CO.PET.161/1997 Page 3 of 3 and Mr. Mukhinder Singh, the Director of M/s Ganga Automobiles Limited are present in Court and their statements may be recorded. Let their statements be recorded.
February 2, 1998.
Sd/-
Anil Dev Singh, J.
The statement of Mr. G. Sagar Sun, Chairman, M/s Delhi Automobiles Limited and Mr. Mukhinder Singh, Directors of M/s Ganga Automobiles Limited, have been recorded. The undertakings given by them are accepted. In case the property No.1, Sikandra Road, New Delhi is not sold within a period of three and-half months and the amounts which are due to the creditors who are before this Court are not paid off or any other favourable arrangement securing the monies of the creditors is not reached within the above said period from today, the property No.1, Sikandra Road, New Delhi will be deemed to have been attached and will be sold under the supervision of the Court ... ..."
c) On 03.02.1998, Mr. G.S. Suri sought to withdraw the statement he had previously made on 02.02.1998, on the ground that he had made the same without requisite authority from the Board of Directors of DAL, the company which owned the subject property. However, this Court vide order dated 03.02.1998, was pleased to hold that the request to withdraw the statement CO.PET.161/1997 Page 4 of 4 made by Mr. G.S. Suri, as recorded in the said order dated 02.02.1998 and in particular, the part pertaining to attachment of the subject property, would be considered only if a review of the said order dated 02.02.1998 was sought.
d) On 20.02.1998, this Court modified its previous order dated 02.02.1998, directing that the said order dated 02.02.1998 would have no effect till the next date of hearing i.e. 22.05.1998, by which date GAL was directed to make all efforts to repay its creditors, failing which it shall be deemed to be wound up.
e) On the next date of hearing i.e. 22.05.1998, no reference was made in the order of the even date qua the subject property, except for a direction to the effect that "....the order dated 20th February, 1998 needs no variation". The said order directed that in view of the statement made by counsel appearing on behalf of GAL, supported by an undertaking given by Mr. Mukhinder Singh, Director of GAL, Rs.610 lakhs be paid towards the outstanding liability of GAL.
f) Thereafter, on account of the failure of GAL to abide by the said undertaking furnished by Mr. Mukhinder Singh, Director, GAL, on 22.05.1998, this Court directed vide order dated 18.08.1998 that GAL be wound up and the Official Liquidator be appointed as its Liquidator.
g) In relation to the earlier order dated 03.02.1998 passed by this Court (as recorded in sub-paragraph (c) hereinabove), an application was filed on behalf of DAL, being CO.PET.161/1997 Page 5 of 5 CO.APPL.No.1508/1998, seeking review of the order dated 02.02.1998. An application being CO.APPL. No.1241/2005 was also filed for amendment of the said CO.APPL.
No.1508/1998. On 13.08.2009, both these applications (CO.APPL.No.1508/1998 - seeking review; and CO.APPL. No.1241/2005 - seeking amendment) came to be dismissed for non-prosecution. Subsequently, on 18.03.2010, an application being CO.APPL.No.1242/2009 for revival of these two applications was also dismissed for non-prosecution.
h) Eventually, this Court, by way of its order dated 04.04.2011, held that the subject property stood attached and was liable to be sold in view of the circumstance that Mr. G.S. Suri, Chairman of DAL, was holding a valid Power of Attorney from the previous owners of the subject property and, was therefore competent to make the statement, as recorded in the order of this Court dated 02.02.1998 (relevant portion of which has been extracted in sub-paragraph (b) hereinabove).
i) It is observed that DAL claims to have entered into an Agreement to Sell with TDI Infratech (hereinafter referred to as 'Taneja'), qua the subject property, on 24.12.2002, for a consideration of Rs.25 crores. Further, it has been claimed by DAL that out of the total consideration for the said Agreement to Sell dated 24.12.2002, a sum of Rs.5 crores has been paid to DAL. Further, it has been stated by DAL that, a sum of Rs.2 crores paid towards the Lease Deed dated 14.01.2013, entered into between M/s Universal Buildcon India Limited (an CO.PET.161/1997 Page 6 of 6 associate company of Taneja) and DAL, qua the first floor the subject property, has been adjusted towards the sale consideration of the subject property.
j) The order dated 04.04.2011 (whereby this Court directed that the subject property stood attached and was liable to be sold; as recorded in sub-paragraph (h) hereinabove) was carried in appeal by both, Taneja and DAL before the Division Bench and came to be decided by the abovementioned order dated 22.08.2013.
7. A further perusal of the said order dated 22.08.2013 reveals that the principal submission made on behalf of DAL before the Division Bench, was to the effect that the so-called deemed attachment of the subject property, directed by way of order dated 02.02.1998, was stayed by the Court on 20.02.1998 till the next date of hearing, and on the next date i.e. 22.05.1998, the Court directed that "...the order dated February 20, 1998 needs no variation.". This submission, as urged on behalf of DAL, was founded on a reading of the following orders of this Court:
i. Order dated 02.02.1998 (relevant portion of which has been extracted in sub-paragraph (b) of paragrah (6) hereinabove); ii. Order dated 03.02.1998 (whereby the request to withdraw the statement made by Mr. G.S. Suri, as recorded in the order dated 02.02.1998, was directed to be considered only if a review of the said order dated 02.02.1998 was sought); and iii. Order dated 20.02.1998 (whereby it was directed that the order dated CO.PET.161/1997 Page 7 of 7 02.02.1998 would have no effect till the next date of hearing i.e. 22.05.1998, by which date GAL was directed to make all efforts to repay its creditors, failing which it shall be deemed to be wound up).
8. In other words, it was urged on behalf of DAL before the Division Bench that the order dated 20.02.1998 had stayed the attachment of the subject property. It was further urged on behalf of DAL that the orders rendered by the Company Judge could not be considered to be binding upon a bona fide purchaser, in view of the interim orders rendered by the concerned Court, in the suits of Specific Performance, instituted by Taneja and M/s Universal Buildcon India Limited against DAL, in furtherance to the Agreement to Sell dated 24.12.2002 and the lease dated 14.01.2013, respectively, purportedly entered into between them, qua the possession of the subject property (as mentioned in sub-paragraph (i) of paragraph (6) hereinabove).
9. The Division Bench by way of its judgment and order dated 22.08.2013, after considering the series of orders dated 02.02.1998, 03.02.1998, 20.02.1998, 22.05.1998, and 18.08.1998, found that the following was apparent:
(a) Shri G.S. Suri has unequivocally stated that DAL would commit the suit property, i.e. No.1 Sikandra Road and sell it; the proceeds were to be used to liquidate GAL's outstanding liabilities;
(b) On 03.02.1998, Shri G.S. Suri sought to resile from the undertaking, stating that he did not have the authorization to commit the suit property in the manner that he did previously. However, the Court did not relieve him of the undertaking.CO.PET.161/1997 Page 8 of 8
(c) Subsequently, a review petition for recall of the order dated 02.02.1998 was filed. However, the said order was never varied.
(d) The orders dated 20.02.1998 and 22.05.1998 would reveal that GAL sought to buy time to discharge its liabilities, and consequently, the previous orders were kept in abeyance with the condition that in the event the payment schedule indicated to the Court were not adhered to, it would face a deemed winding up.
(e) On 18.08.1998, the Court did, in fact, record the failure of GAL to pay off its creditors, and directed that the winding up order made in a pre-emptory manner should operate. The counsel for DAL in the present appeals, Shri Girdhar Govind, sought time to submit that the order dated 02.02.1998 ought to be reviewed.
(f) The consequence of the previous orders, especially the order of winding up in a pre-emptory manner, (which was part of the composite order rendered on 22.05.1998) has not been disputed. Equally, the order sheet in the company's winding up proceedings reveals that the attachment of the suit property was never vacated or modified.
(g) The review petition and a subsequent application for amendment thereof, made by DAL were rejected.
The effort to revive those applications was also unsuccessful. DAL had earlier appealed, albeit unsuccessfully, against the order of 02.02.1998, to the Division Bench.
10. In view of the foregoing findings, the Division Bench negated the submissions made on behalf of DAL as well as Taneja, that the attachment order passed with respect to the subject property could not bind them.
11. Consequently, the appeals of DAL as well as Taneja were held to be meritless and rejected. Resultantly, the order dated 04.04.2011 under CO.PET.161/1997 Page 9 of 9 appeal, inasmuch as, has levied the attachment on and directed to the Official Liquidator to take possession and sell the subject property, was unequivocally upheld.
12. Thereafter, on 08.10.2013, in an application being CO.APPL.1808/2013, instituted on behalf of the petitioner M/s. Rockmelt Co. (India) Ltd., the Company Court passed the following order:-
" This is an application filed by the applicant seeking a direction to the official liquidator to take possession of the property bearing No.1, Sikandra Road, New Delhi and dispose of the same. On 4th April, 2011 this Court in CA Nos.2462/2010, 2382/2010 and 167/2010 permitted the official liquidator to get the aforesaid property valued by an approved valuer and also observed that after the valuation is done, appropriate orders for the sale of the property would be passed. Against the aforesaid order M/s Delhi Automobile Ltd. and Taneja Infrastructure and Developers Ltd. who claim to be the owners of the aforesaid property, preferred separate company appeals before the Division Bench which were dismissed by the Division Bench by orders dated 22nd August, 2013.
The present application has been filed to point out that since the appeals have been dismissed, the official liquidator should be directed to take possession of the property. This contention is vehemently opposed by the learned counsel appearing for the Delhi Automobile Ltd. It is contended that there is still time for Delhi Automobile Ltd. to challenge the orders of the Division Bench in further appeals and till then nothing should be done which may adversely affect Delhi Automobile Ltd.
Now that the appeals have been dismissed by the Division Bench and there is no further appeal pending as on date nor is there any stay order, there is no impediment CO.PET.161/1997 Page 10 of 10 in issuing a direction to the official liquidator to take possession of the property and dispose of the same. However, in the meantime the occupants of the property have to be given notice of these developments. It is stated that one Mr. Narender Suri is in occupation of the property except two rooms of the first floor which are in possession of the official liquidator. After giving due notice to the occupants of the orders passed by the Division Bench it will be open to the official liquidator to take steps to take possession of the property.
The application is disposed of in the above terms. Relist the other applications on 8th January, 2014."
13. At this juncture, Mr. Parag Tripathi, learned Senior Counsel as well as Mr. Sudhir Nandrajog, learned Senior Counsel representing Taneja and DAL respectively, state that the above order, insofar as it records that "there is no further appeal pending as on date", is incorrect, inasmuch as, Special Leave Petition Nos. 32508/2013 & 36873-75/2013 have been instituted by the latter, assailing the decision of the Division Bench dated 22.08.2013. However, it is an admitted position that till date, there is no order of stay qua the directions issued by this Court by way of order dated 04.04.2011, which merged into the decision of the Division Bench dated 22.08.2013.
14. However, for reasons best known to the Official Liquidator, which need not be gone into at this juncture and which may require calling for an appropriate explanation during the course of the present proceedings; no steps whatsoever were taken by the Official Liquidator to secure the possession of the subject property.
15. Subsequently on 11.09.2014, on the report of the Official Liquidator being OLR 145/2014, this Court rendered the following order:
CO.PET.161/1997 Page 11 of 11 "Report No.145/2014The Official Liquidator has filed the report indicating the amount admitted by the Official Liquidator towards the dues of the unsecured creditors and the workmen.
The Official Liquidator has stated that the claim of the Income Tax Department has been rejected as no documentary proof was furnished by the Income Tax Department. The Official Liquidator has submitted that the Corporation Bank has chosen to stay outside the winding up proceedings and as per the Official Liquidator excess amount has been paid to the Corporation Bank.
Learned senior counsel appearing for Delhi Automobiles Limited submits that if the amount is crystallised, the Delhi Automobiles Limited may be willing to deposit/pay the said amount to the secured and unsecured creditors from its other sources rather than from the sale of the property at 1 Sikandara Road. Learned senior counsel further submits that the Delhi Automobiles has filed a Special Leave Petition before the Supreme Court impugning the order dated 22.8.2013 by the Division Bench confirming the direction of sale of the said property and the Special Leave Petition is listed in the end of October for final disposal.
Issue notice to Commissioner of Income Tax, Income Tax Officer, RTO, New Delhi, returnable on 21st January, 2015.
Learned senior counsel for the Corporation Bank submits that he has not received a copy of the report. Let a copy of the report be furnished to the counsel for the Corporation Bank.
Learned counsel appearing for Mr.Charanjit, Ex Director submits that even he has not received the copy of the report.CO.PET.161/1997 Page 12 of 12
Let a copy of the report be also supplied to the counsel for Ex Director Mr.Charanjit Singh.
Learned senior counsel appearing for Delhi Automobiles Limited further submits that some amount was deposited by Delhi Automobiles Limited with the Registry of this Court.
The Registry is directed to furnish a report indicating the amount deposited by Delhi Automobiles Limited along with the interest accrued thereon before the next date of hearing.
It is claimed by M/s Universal Buildcon Limited that they are in possession of a portion of a property. The Official Liquidator submits that the said portion apart from some other portion has been sealed by the Official Liquidator and some portion is in possession of Delhi Automobiles Limited.
It is directed that till the next date of hearing, status quo in respect of title and possession shall be maintained in respect of property No. 1 Sikandara Road, New Delhi.
Renotify on 21st January, 2015."
16. In order to effectively adjudicate the submissions now made on behalf of the counsel appearing on behalf of DAL and Taneja, it would be profitable to extact the relevant portion of report No.145/2014, filed on behalf of the Official Liquidator as follows:
"7. That as per direction of this Hon'ble Court of order dated 18.02.2014 it is submitted that in response to the notices advertised by the Official Liquidator on 10.04.2008, inviting the claims it had received the claims from the creditors of the company. The claims received by this office were scrutinized/examined and adjudicated as per law. The claims adjudicated and settled as detailed as under:CO.PET.161/1997 Page 13 of 13
UNSECURED CREDITORS:-
S.No. NAME OF AMOUNT AMOUNT REMARKS
CLAIMED ADMITTED
1. Ms. Kalpana Jain 3,92,370/- 87,247/- Admission letter
issued on 12.11.08
2. Dr. A.P. Jain 29,52,430 6,50,472 Admission letter
issued on 12.11.2008
3. Shri Alok Jain 12,85,490/- 2,84,365/- 12.11.2008
4. Shri Chitra Jain 9,06,762, 4,20,460 12.11.2008
5. Dr. A.P. Jain & Sons 2,05,829/- 45,709/- Admission letter
(HUF) issued on 12.11.08
6. Shri Prakash 70,0000/- 58,413/- Admitted as unsecured
Mulchandani Creditors
7. M/s Rocksmelt Company 66,72,960/- 12,39,000/- Admitted, admission
(India Ltd.) letter issued
8. M/s Goyal MG Gases 3,89,39,429/- Admitted, admission
Pvt. Ltd. letter issued
9. M/s Poyasha Oxigen Ltd. 1,44,28,492/- Admitted, admission
letter issued
10. M/s Pashupati Fincap 85,58,832/- 60,00,000/- Admitted subject to
(Admitted in further verification of
termf of court proof of debt and
order dated recovery of rent
08.01.2014 received by the
claimant from the
tenant. Admission
letter issued.
11. Rajeev Goel Architect 48,64,000/- 14,64,728/- Subject to further
Pvt. Ltd. verification of proof of
debt. Admission letter
issued.
CO.PET.161/1997 Page 14 of 14
CLAIMS OF WORKMEN:-
S.No. NAME OF AMOUNT AMOUNT REMARKS
CLAIMANTS CLAIMED ADMITTED
1. Sh. Des Raj 30,918/- 25,082/- Admission letter issued
2. Mohd. Irshani 1400/- 1400/- Admission letter issued on
12.11.08
3. Sh. Dirender Singh 45,215/- 33,454/- Admission letter issued
4. Sh. Narender Singh 32,452.15 23,244.15 Admission letter issued on
12.11.2008
5. Sh. Shyam Sunder 50,000/- 40,469/- Admission letter issued on
09.04.2009 & 24.04.2009
that response of affidavit
filed on 08.05.2009
(pending)
6. Sh. Yashbir Singh Rawat 41,986/- 24,773/- Admission letter issued on
18.04.2011
7. Sh. Sworan Singh 38,500/- 13,000/- Admission letter issued on
09.04.2009
8. Sh. Satish Singh 66,567/- 36,500/- Admission letter issued on
09.04.2009
9. Smt. Mamta Sharma 85,619/- 38,972/- Admission letter issued
10. Sh. Rajendra Singh 35,636/- 30,304/- Admission letter issued
Rawat
11. Sh. Bal Kishan 76,364/- 46,753/- Admission letter issued
12. Sh. Shamsher Singh 84,515/- 35,686/- Admission letter issued on
02.03.13
13. Sh. Swran Singh Claim 99,166/- 39,737/- Rejected as the claimant has
received after due date not got the delay condoned
14. Sh. Rajan Awasthi 92516/- 35,499/- Admission letter issued
15. Sh. Alok Agarwal 83,207/- 28,116/- Admission letter issued
16. Sh. Mukesh Kumar 83,336/- 51,324/- Admission letter issued
Rastogi
CO.PET.161/1997 Page 15 of 15
17. Sh. Raj Singh 41,201/- 43,221/- Admission letter issued
18. Sh. Dinesh Chandra 89,8592/- 31,907/- Admission letter issued
19. Sh. Prem Ram 54,172/- 50,032/- Admission
20. Sh. Bhagwan 1,63,872/- 15,972/- Admission letter issued
That subsequently this office of Official Liquidator received following more claims i.e. from employee S.No. NAME OF AMOUNT REMARKS CLAIMANTS CLAIMED
1. Sh. Mangat Ram 54,277.33 Claimant has been asked to provide the (Employee) document to proof his debts.
(Claim submitted on
09.03.2004)
2. Mr. Mahavir Singh 37,012/- Claimant has been
asked to provide the
(Employee) document to proof his
debts.
(Claim submitted on
09.03.2004 received from
JVG Section 07.01.2013)
3. Mr. Sanil 35,433/- Claimant has been
asked to provide the
(Employee) document to proof his
debts.
(Claim submitted on
09.03.2004)
4. Mr. Gyan Chand Amount Rejected as the
not claimant has not got
(Employee) specified the delay condoned.
(Claim filed after due
date)
CO.PET.161/1997 Page 16 of 16
5. Mr. Akali Singh Amount Rejected as the
not claimant has not got
(Employee) specified the delay condoned.
(Claim filed after the due
date)
xxxx xxxx xxxx xxxx
xxxx xxxx xxxx xxxx
12. Shri Ujval Sagar Suri, S/o Shri Sagar Suri, vide his letter dated 12.11.2013 & 17.01.2014 has stated that out of the total debts of Rs.311 lacs, owed by the company as on 2.2.1998, in respect of the various company petitions filed and pending before the Court on that dates, debts of Rs.226 lacs have been settled in out of Court Settlement and paid the amount to the petitioners accordingly they have given their NOCs. Only Rs.85 lacs out of total debts of Rs.311 lacs is remained to be settled and paid. The unsettled Company Petitions for a total amount of Rs.85 lacs are as under:-
1. C.P. No.53/97 M/s Vishwanathan Investment & Ors for Rs.17.50.
2. C.P. No.120/97 M/s Lafance Overseas for Rs.25.00 lacs.
3. C.P. No.140/97 M/s Turant Sanchar for Rs.30.00 lacs.
4. C.P. No.404/97 M/s R.M. Software India for Rs.12.50 lacs.
The details of Company Petitions in which out of court settlement was reached and NOCs were obtained are as under:-
1. C. P. No 161/97 M/s Rocksmelt Company
2. C. P. No.320/96 M/s U. K. Paints
3. C. P. No.99/97 M/s Monet Apparels
4. C. P. No.100/97 M/s Trendy Fashions CO.PET.161/1997 Page 17 of 17
5. C. P. NO.101/97 M/s Dewan Co.
6. C. P. NO.110/97 M/s M. R. Agarwal 7 C. P. No.157/97 M/s Dhampur Invertor
8. C. P. No.163/97 M/s F. M. Parts
9. C. P. No.164/97 M/s Trans Asia Consultant
10. C.P. No.293/97 M/s K.I. C. Food
11. C. P. No.366/97 M/s Veena Lakhotia Petitioner in C.P. 161/97 M/s Rocksmelt had filed an affidavit that it has reached out of court settlement with Mr. Sagar Suri and his family and that the petitioner is not interested in pursuing the case any further. However the settlement amount is lying deposited with the Official Liquidator in terms of the order passed by this Hon'ble Court on 27.02.2012. Copies of letter dated 12.11.2013, 17.01.2014 and the affidavit of M/s Rocksmelt are enclosed herewith and marked as annexure 'C' (Colly).
xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx
16. That The total liability of the company as per the claims admitted by the Official liquidator toward the unsecured creditors and the workmen comes to Rs.6,42,63,759.15. It may be pointed out that adjudication of the claim by the Official Liquidator are further subject to appeal in this court as provided under Rule 164 of the Companies (Court) Rules 1959. It may also be stated that amount admitted do not include any component of interest. However, to balance of equities for all parties, this court may consider grant of some interest. However, Rule 156 of the Companies (Court) Rules, 1959 provides the payment of interest to the maximum of 4% on any debt or certain sum, payable at a certain time or otherwise where on interest is not reserved or agreed for, and which is overdue at the date of the winding up order and the creditors for major debts have been given interest in terms of decree awarded in their favour."
CO.PET.161/1997 Page 18 of 1817. A plain reading of the above paragraphs of the report No.145/2014 would show that the Official Liquidator has determined the outstanding liability qua the company in provisional liquidation to the extent of Rs.6.42,63,759.15, without interest. It would further reflect that the claim of the Income Tax Department qua the statutory dues, in relation to GAL have been rejected, in view of the circumstance that the latter was unable to produce the relevant material in that behalf.
18. At this juncture, it would be appropriate to observe that in the affidavit filed on behalf of the Income Tax Department dated 17.03.2017 authored by Ms. Anita Meena, the Deputy Commissioner of Income Tax, Circle-10(1), C.R. Building, New Delhi, referred to hereinabove, the Income Tax Department has raised a claim towards the outstanding unpaid income tax dues, in relation to GAL to the extent of Rs.58,54,43,000/-, pertaining to assessment years 1987-88, 1988-89, 1990-91, 1991-92, 1996-97, 1997-98 and 1998-99.
19. Mr. Sudhir Nandrajog, learned Senior Counsel appearing on behalf of DAL, would urge that the latter is willing to comply with the undertaking furnished to this Court qua the disbursement of the outstanding dues owed by GAL, as alleged in the sixteen company petitions, that were originally filed, provided the subject property is simultaneously released from attachment. The said outstanding amount, according to them, amounts to only Rs.85 Lakhs, which finds mention in Para 12 of OLR No.145/2014 (extracted in Paragraph (12) hereinabove).
20. Mr. Parag Tripathi, learned Senior Counsel appearing on behalf of Taneja, would invite the attention of this Court to the submissions made in CO.PET.161/1997 Page 19 of 19 CO.APPL.1222/2014, to urge that the latter would be willing to deposit the balance sale consideration for the purchase of the subject property in the sum of Rs.18 crores before the Official Liquidator, provided that they are given clear marketable title of the subject property alongwith the possession thereof. Mr. Parag Tripathi, learned Senior Counsel, would further state that the final determination qua the subject property would yield to effective adjudication of the outstanding claims of all the creditors, including those of the Income Tax Department, as aforementioned.
21. Mr. Harish Malhotra, learned Senior Counsel appearing on behalf of M/s. Goyal M.G. Gazes (P) Ltd. and M/s Poysha Oxygen (P) Ltd., two of the unsecured creditors, as well as, Ms. Kajal Chandra, learned counsel appearing on behalf of the petitioner, would state that their claims have been wrongly adjudicated by the Official Liquidator, without considering the interest component, that has accrued on the principal sums owed to them, and directly in opposition to the Award dated 31.07.2007 rendered by Mr. P.K. Bahri, the Arbitrator, in the case of M/s. Goyal M.G. Gazes (P) Ltd. and M/s Poysha Oxygen (P) Ltd.
22. In view of the foregoing, there are two inescapable conclusions that are axiomatic:
(a) That DAL had offered attachment of the subject property to the Official Liquidator to discharge and pay all the existing and future liabilities, including all the dues owed to various secured and unsecured creditors of GAL.
(b) Despite repeated opportunities both, DAL and GAL have failed, avoided and neglected to disburse and discharge the said outstanding liability.CO.PET.161/1997 Page 20 of 20
23. Therefore, in view of the foregoing facts and circumstances, it is considered appropriate, at this stage in the first instance, whilst awaiting the decision of the Hon'ble Supreme Court in the Special Leave Petitions instituted on behalf of Taneja and DAL, to direct the Official Liquidator to comply with the direction issued by this Court by way of the order dated 08.10.2013 (relevant portion of which has been reproduced in paragraph (12) hereinabove), insofar as, it required the Official Liquidator to take over possession of the subject property. The Official Liquidator is directed to comply with the direction contained in the order dated 08.10.2013, forthwith.
24. The order dated 11.09.2014 (reproduced in paragraph (15) hereinabove), rendered by this Court is modified accordingly.
25. The Official Liquidator is directed to file a report in compliance with the present order, on or before the next date of hearing.
26. List for further proceedings on 17.08.2017.
27. Dasti.
SIDDHARTH MRIDUL, J MARCH 20, 2017 dn CO.PET.161/1997 Page 21 of 21