Jharkhand High Court
Small Industries Development Bank Of ... vs Ms Metal Om Technik Pvt Ltd on 11 August, 2016
Author: D. N. Patel
Bench: D.N. Patel
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Company Petition No. 16 of 2015
Small Industries Development Bank of India, a Corporation
established by Small Industries Development Bank of India Act,
1989 (39 of 1989) and having its Head Office at SIDBI Towers, 15,
Ashok Marg, PO & PS Hazratganj, Lucknow- 226001 through its
Deputy General Manager, Konghay Rimai Samuel son of Sri Rimai
Zairei Konghay, Jamshedpur Branch Office at Shantiniketan
Building (First Floor), Main Road, Bistupur, PO & PS- Bistupur,
Jamshedpur, Pin 831 001, Jharkhand
........Petitioner
Versus
M/s Metal Om Technik Pvt. Ltd. an existing company duly
incorporated under the provisions of the Companies Act, 1956,
having its registered office at Rahargora, PO- Rahargora, PS-
Parsudih, Jamshedpur, East Singhbhum, Pin- 831 016, Jharkhand
.......... Opp. Party
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CORAM: HON'BLE MR. JUSTICE D.N. PATEL
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For the Petitioner : Mr. Praveen Jaiswal, Advocate For the Opp. Party : Mr. Vikash Kumar, Advocate For Official Liquidator : Mr. Lakhan Sharma, Advocate
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13/Dated:11 August, 2016 th Per D. N. Patel, J.:
1. Having heard learned counsel for both the sides and looking to the facts and circumstances of the case, it appears that sizable loan amount has been given by this petitioner-Bank to the respondent-Company and the respondent-company is unable to pay back even the principal amount. These facts have been narrated, in detail, in the order dated 29 th July, 2016, passed by this Court in this matter. The total principal amount of loan comes to Rs.3,90,00,000/- approximately. This amount is to be recovered by this petitioner-Bank with interest. Necessary notices have also been given by this petitioner-Bank to the respondent-Company.
2. Several adjournments have been taken by the respondent-
Company to make, at least, part payment to this petitioner-Bank, but, nothing has been paid at all. In fact, this Court was to appoint provisional liquidator much earlier, but, the respondent- Company had tendered a cheque of Rs.10,00,000/- to the petitioner-Bank in this Court. The said cheque has been 2. dishonored for want of sufficiency of the fund. This is the behaviour of the respondent-Company. Thus, it appears that the respondent-Company is unable to pay back its debt and, hence, as per Section 433(e) of the Companies Act, 1956, respondent- Company may be wound up, as submitted by the learned counsel for the petitioner-Bank. Further, it appears that as per Section 434 of the Companies Act, 1956, necessary notices have also been given to the respondent-Company, but, despite this fact, the respondent-Company is unable to pay back its debt.
3. I, therefore, appoint provisional liquidator for respondent- Company under Section 450 of the Companies Act, 1956. Notice has already been given by this Court and this Court has also perused the reply, filed by the respondent-Company and looking to the reply, filed by the respondent-Company, it appears that the respondent-Company is unable to pay back its debt due to the petitioner-Bank. The provisional liquidator will exercise all the powers, vested in him under the Companies Act, 1956, as a liquidator of the respondent -Company.
• All the four Directors of the respondent-Company will not work as Director(s) of the respondent-Company, till further orders of this Court and the provisional liquidator will take charge of the respondent-Company.
• None of the Directors of the respondent-Company will either use the vehicle(s) or the mobile or any other perks, provided by the respondent-Company and if they are in possession of any vehicle, mobile or any other thing, provided by the respondent-Company, they will immediately surrender the same to the provisional liquidator, appointed by this Court. The respondent- 3. Company shall not pay any kind of bills henceforth from today of the mobile etc., supplied to the Directors, including Managing Director of the respondent-Company. If the Managing Director and/or the Directors are in occupation of any residential accommodation, provided by the respondent-Company, they shall vacate the same within a period of fifteen days from today and the provisional liquidator will take charge of the said residential accommodation(s), if any, provided to the Director(s), including Managing Director.
• Further, if any loan has been taken by the Managing Director and/or Director(s) from the respondent-Company, this fact will be highlighted by the provisional liquidator by the next date of hearing.
4. The respondent-Company operates bank account bearing No. 10413535218 of the State Bank of India, SME Branch, Adityapur, Jamshedpur. This bank account will not be operated by the Managing Director of the respondent-Company and necessary signature etc. will be taken by the State Bank of India of the provisional liquidator and the said bank account shall now be operated by the provisional liquidator. Till the formalities for operating the bank account by the provisional liquidator is completed, the Bank is hereby directed not to allow any withdrawal, without permission of this Court. However, the amount can be deposited in the aforesaid bank account, but, withdrawal is not permissible, without prior permission of this Court or till the formality of taking signature etc. of the provisional liquidator by the aforesaid Bank is completed and 4. henceforth the provisional liquidator shall operate the said bank account.
5. The Directors, namely, (1) Manish Kumar @ Manish Kumar Verma, (2) Amaresh Kumar Verma, (3) Ashish Kumar and (4) Smt. Manjula Rani Verma, shall co-operate the provisional liquidator.
6. Apprehension has been shown by the learned counsel for the petitioner that the Directors, including the Managing Director, of the respondent-Company may not allow provisional liquidator to take charge smoothly of the respondent-Company and hence, they are seeking assistance of police and/or others officers of the State Government.
7. I, therefore, direct the Managing Director and/or Directors of the respondent-Company not to interfere with the work of the provisional liquidator, appointed by this Court for the respondent- Company. Since the provisional liquidator will immediately take charge of respondent-Company, I also direct the Superintendent of Police, Singhbhum West, to depute necessary police force, as demanded by the provisional liquidator and the cost towards the deputation of such police force will be adjusted from the sale proceeds of the assets of the respondent-Company.
8. I also direct the Directors, including Managing Director of the respondent-Company not to create any charge upon the property of the respondent-Company nor shall they sell, lease, sub-lease, gift or otherwise alienate the movable or immovable property of the respondent-Company, till further orders of this Court.
9. Similarly, I further direct the Managing Director and other Directors of the respondent-Company not to transfer their personal immovable property, without prior permission of this 5. Court and if they want to transfer their personal immovable property, necessary application shall be preferred before this Court, in this Company Petition, because there are all chances that they may transfer the assets of the respondent-Company and in that case, this Court may apply the principle of "lifting of veil".
10. Copy of this order will be sent by the Registrar General of this Court to:
(a) Registrar of Companies, Ranchi;
(b) Superintendent of Police, Singhbhum West;
(c) Deputy Commissioner, Singhbhum West, who is also Registrar of the District, so that he may not register any document for sale of the property at the hands of the Managing Director or Directors of the respondent-Company and such type of transfer shall not be registered where the Managing Director or the Directors are the parties to the transfer of the property, which includes the personal property of the Managing Director and the Directors of the respondent-Company; and
(d) Official Liquidator of the Companies, Ranchi.
11. I also direct the provisional liquidator to verify the statements, submitted by the respondent-Company before the Registrar of the Companies, of last three years and if the same are found to be a false statement, necessary criminal action will be initiated under the provisions of Companies Act, 1956, including Section 628 thereof as also under such other provisions of other Acts, applicable to the Managing Director and Directors of the respondent-Company.
6.
12. The official liquidator, namely, Mr. C.M. Karl Marx s/o C. Mathi Sekaran, who is appointed as a provisional liquidator, is present in the Court. I direct him to take charge of the respondent-Company by tomorrow (12th August, 2016). The provisional liquidator will give the report of the assets of the respondent-Company to this Court. The provisional liquidator is also directed to take help of such other persons/authorities, as may be deemed fit by him, and the cost of such additional persons/authorities shall be compensated from the sale proceeds of the assets of the respondent-Company.
13. This matter is adjourned on 1st September, 2016.
(D.N. Patel, J.) A.K.Verma