Gujarat High Court
Binaykia Impex Private Limited vs Official Liquidator Of M/S Sohm (India) ... on 4 October, 2018
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/COMA/552/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/COMPANY APPLICATION NO. 552 of 2016
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BINAYKIA IMPEX PRIVATE LIMITED
Versus
OFFICIAL LIQUIDATOR OF M/S SOHM (INDIA) PVT. LTD (IN PROV
LIQUIDATION)
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Appearance:
MR. AH MOHAPATRA(6807) for the PETITIONER(s) No. 1
MS KJ BRAHMBHATT(202) for the RESPONDENT(s) No. 1
NOTICE SERVED(4) for the RESPONDENT(s) No. 2,3,6
NOTICE UNSERVED(8) for the RESPONDENT(s) No. 4,5
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CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 04/10/2018
ORAL ORDER
1.0. The applicant by this summons has prayed for a direction directing the Official Liquidator to handover the possession of storage shed situated in GIDC Plot No. 1307/1308 Vatva, Ahmedabad to the applicant after removing the articles, machineries lying with the storage shed and further directed to deseal the storage shed.
2.0. Heard Ms. Saksi Raheja, learned advocate for Mr. A.H. Mohapatra, learned advocate for the applicant and Ms. K.J. Brahmbhatt, learned advocate for the respondent no.1 Official Liquidator (hereinafter referred to as the "OL"). Though served, nobody appears on behalf of other respondents. Learned advocate for the applicant has taken this Court through factual matrix arising out of this application and has submitted that one property prayed for was never the property of the company in liquidation and hence, the summons deserves to be allowed as prayed for.
3.0. Learned advocate for the OL has relied upon the reports Page 1 of 14 C/COMA/552/2016 ORDER submitted by the OL in this application, more particularly, report dated 06.09.2018 and has submitted that prayers prayed in the said report dated 06.09.2018 be granted.
4.0. Upon hearing the learned advocates for the parties and upon perusal of the record and proceedings of this application, it appears that company in liquidation viz. M/s Sohm(India) Private Limited (hereinafter referred to as the "Company in Liquidation") was ordered to be wound up by this Court vide order dated 04.05.2016 passed in Company Petition No.47 of 2015. The OL attached to this Court came to be appointed as Provisional Liquidator and was directed to take over the charge and possession of the assets of the company in liquidation. It is the case of the applicant that the applicant is the original allottee of GIDC Plot No. 1307/1308 Vatva, Ahmedabad by an order of allotment issued by GIDC dated 19.09.2008. It is further the case of the applicant that Company in liquidation entered into leave and license agreement on 18.09.2012, which was registered with the SubRegistrar, AhmedabadII (Aslali) under the serial no. 5384 and under the said lease agreement the property in question i.e. constructed godown on GIDC Plot No. 1307/1308 Vatva, Ahmedabad was given on license to the company in liquidation for a period of five years commencing from 1.4.2011 on a monthly rent of Rs.70,000/ with escalation of 7.5% each year. It is further the case of the applicant that even though requested the company in liquidation did not pay rent charges. It is further averred that as the rent was not paid, the applicant deposited the advance cheques given which were dishonored. The applicant has contended that ultimately lease agreement came to be terminated on 24.03.2015. The applicant has further averred that notice of termination was totally ignored by the Page 2 of 14 C/COMA/552/2016 ORDER company in liquidation and the applicant therefore, filed Civil Suit being No. 1560 of 2015. It is the case of the applicant that the company in liquidation stopped production from its unit situated in the licensed premises since 2015 and stored machineries of the company in the storage shed and locked the same. It is also the case of the applicant that even the request made to the officials of the company in liquidation failed and the application was not handed over the possession of the storage shed. The applicant has further averred that on 09.05.2016 the applicant company entered into a registered lease deed with Zeon Formulations for the land in question except storage shed where articles of the Company in liquidation were kept under the lock of the company. The applicant has also further contended that ultimately OL applied its seal over the storage shed situated in the plot in question.
5.0. The applicant has further contended that the GIDC plot in question does not belong to the company in liquidation, however in the articles of company in liquidation storage shed of the applicant company has remained sealed under the custody of the OL and articles of the company in liquidation are lying there. It is averred by the applicant that sealing of the shed by the OL was unnecessary and unwarranted and therefore, it is averred that this Court may pass appropriate orders for removal of the seal. Along with application and the affidavit in support of the application has also relied upon the office order dated 19.09.2008 issued by the GIDC communicating that the plot in question i.e. plot nos. 1307 and 1308 at Vatva Industrial Estate admeasuring 1406 sq mtr was allotted to the applicant company and lease deed was executed and it stood transferred in favour of the applicant company w.e.f. 19.09.2008. The applicant has Page 3 of 14 C/COMA/552/2016 ORDER also relied upon the other documents to buttress the contention raised in the application.
6.0. In response to the notice issued by this Court, the OL has firstly filed a report dated 27.12.2017. The OL has brought on record that after the OL was appointed as Provisional Liquidator by this Court, it took possession of the movable and immovable properties of the company in liquidation. It has also brought on record that the officials of the OL also contacted the present applicant along with the officers from Oriental Bank of Commerce. It has also brought on record that the officials of the applicant informed about the leave and license agreement dated 13.09.2012 and the fact that company in liquidation has not paid any rent. It is averred that after the order was passed by this Court in Company Petition No. 47 of 2015 i.e. on 4.5.2016 the applicant has executed a leased deed in favour M/s. Zeon Formulation on 09.05.2016 without permission of this Court and has transferred movable articles from the site to storage shed. It is also averred that the lease so executed in favour of M/s Zeon Formulation is thus void and prima facie fraudulent within the meaning of Sections 531, 531A and 536 of the Companies Act, 1956 and has further prayed for ratification of the action taken by the OL. The OL has also brought on record the minutes drawn at the time of taking over the possession of one of the premises of the company in liquidation i.e. plot in question. The OL has further filed further report dated 12.01.2018. The OL has contended in the said further report that pursuant to the hearing of this application on 10.01.2018 the OL has carried out inventory cum valuation of movables assets lying in property in question through Mr. Naresh K Shah, Government approved Panel Valuer on 28.06.2016 while taking possession thereof Page 4 of 14 C/COMA/552/2016 ORDER and OL has relied upon the said report. The OL has further referred to the order dated 18.12.2017 passed by this Court (Coram: Hon'ble Mr. Justice C.L. Soni) whereby this Court granted said application partly except prayer for constitution of the sale committee. It is the say of the OL that by the said order passed by this Court the action of the OL for taking over the possession of the property in question is also ratified. The OL has further prayed in the said further report that OL is ready and willing to sell movable properties lying in the premises in question and has therefore, prayed for permitting the OL to open sealed cover containing inventory report and to fix upset price and EMD and also pleased to decide the names of the newspapers in which the sale proclamation be made and alternatively has also prayed for constitution of the sale committee.
7.0. The record indicates that considering the said further report filed by the OL this Court (Coram: Hon'ble Mr. Justice C.L. Soni) passed the following order on 15.01.2018;
"1. Official Liquidators further report tendered by the Official Liquidator is taken on record. In this further report, it is stated that the Official Liquidator has carried out the inventorycumvaluation of the assets through M/s.Naresh K. Shah, approved Valuer on 28.06.2016, while taking possession of the property of the company. The said inventorycumvaluation report is placed before the Court in sealed cover.
2. The sealed cover when opened, the documents titled as inventorycumvaluation in part I and part II with the letters dated 09.07.2016 addressed by Mr.Naresh K. Shah to the Official Liquidator are found. They are taken on record. The Official Liquidator states that since in the context of the inventorycumvaluation done by Mr.Naresh K. Shah, Government registered Valuer he needs to file his further report, he may be given xerox copy of the documents taken out from the sealed cover.
3. The office shall give xerox copy of all the documents to Page 5 of 14 C/COMA/552/2016 ORDER the Official Liquidator. Let the Official Liquidator file report after getting xerox copies of the documents. There is one more sealed envelop, on opening of which it is found to have contained bill of Mr.Naresh Shah. The original bill dated 09.07.2016 for Rs.24,150/ shall be handed over to the Official Liquidator for further action in the matter.
4. Let the present application receive further consideration after four weeks. S.O to 19th February 2018. "
7.1. The record further indicates that pursuant to the order dated 15.01.2018, the OL has filed a further report dated 08.03.2018. the OL has further averred that in pursuance to the order dated 15.01.2018, the OL held meeting with the Valuer Mr. Naresh Shah on 06.02.2018 and accordingly, the Valuer remained present in the meeting. The OL has further averred that on inquiry made, the representative of the Valuer i.e. one Mr. Mahendra Shah, who remained present in the meeting and informed the OL that valuer met Mr. Sushil Binayika, owner of the present applicant company and they were informed about the lease given to the company in liquidation. It is also further averred that the representative of the valuer also informed that plants and machineries situated at main rented shed were transferred to adjoining godown which also belonged to M/s. Binayika Impex Private Limited. It was also further clarified by the representative of the Valuer that these facts are included in the valuation report dated 09.07.2016.
8.0. The OL relying upon the inventory / valuation report dated 09.07.2016 prepared by the valuer has also stated that value of the movable assets, plants and machineries is as under:
Estimated Fair Market Value Rs.15,00,000/ Page 6 of 14 C/COMA/552/2016 ORDER Distress Value Rs.13,50,000/ Jantri Rate Rs.12,00,000/
8.1. The OL has further contended that in light of the aforesaid upset price to be fixed at Rs.15 lakhs and EMD fixed at Rs.1,50,000/ and has also stated proposed programme for the sale of the plants and machineries i.e. immovable lying in the plot in question and accordingly made such prayers including prayer of publication of the advertisement in Sandesh and Economics Times and also for payment to the advertising agency from the common funds. The OL also further prayed for permitting OL to initiate eauction proceedings through M/s Eprocurement Technologies Ltd and also further prayed for approval of the terms and conditions dated 19.01.2018 of the E auction company and has further prayed for direction directing the OL to place result of the same before this Court. Based upon said report, this Court (Coram: Hon'ble Mr. Justice C.L. Soni) passed the following order on 2.4.2018;
[1] After this Court made order dated 06.03.2018 giving time to the Official Liquidator to file report in the present application, the Official Liquidator has filed the report dated 08.03.2018 inter alia stating that the valuer has valued the movable assets (plants and machineries) lying in the godown (shed) of the main premises which was given on rent to the company in liquidation and as per the valuation report, estimated fair market value of the movable assets of the company in liquidation is at Rs.15,00,000/, distress value is at Rs.13,50,000/ and jantri value is at Rs.12,00,000/. It is stated in the report that the Official Liquidator is proposing to sell such movable assets at estimated fair market value. The Official Liquidator has also asked for permission to give publication of the sale proclamation in one vernacular language and one in English language newspapers, which are economically viable as there is no fund available in the account of the company in liquidation and has also sought permission to sell the assets of the company in liquidation Page 7 of 14 C/COMA/552/2016 ORDER by way of eauction through eauction agency M/s.Eprocurement Agency Limited on the same terms and conditions as earlier permitted by this Court in another case. The Official Liquidator has prayed for direction to fix upset price and EMD for sale of the movable assets of the company in liquidation and also asked for permission to incur necessary advertisement expenses from the common pool account maintained by the office of the Official Liquidator.
[2] Learned advocate Ms.Brahmbhatt submitted that since the movable properties of the company in liquidation are not of much higher value and since the applicant of the present application has prayed for direction to the Official Liquidator to remove the movable assets lying in the shed of the main premises, the Court may permit the Official Liquidator to take appropriate steps for sale of the movable assets by fixing upset price and EMD as suggested in the report I.e. Rs.15,00,000/ and Rs.1,50,000/ respectively and also permit the Official Liquidator to undertake the sale of the movable assets of the company in liquidation by way of eauction through eauction agency - M/s.E Procurement Agency Limited as suggested in the report. [3] Learned advocate Ms.Raheja appearing for learned advocate Mr.Mohapatra for the applicant submitted that since, the Official Liquidator has taken long time to take initiative for the purpose of removal of the movable assets lying in the shed of the applicant, the Official Liquidator may be directed to take immediate action for sale of the assets of the company in liquidation immediately. [4] At this stage, learned advocate Ms.Brahmbhatt for the Official Liquidator states that as per the sale schedule suggested for the sale of the movable assets of the company in liquidation, the stages for sale will immediately commence and will be strictly adhered to. The sale schedule suggested by learned advocate Ms.Brahmbhatt for the sale of the movable assets of the company in liquidation is as under:
Date of Advertisement 09.04.2018 Date of issuance of Tender 10.04.2018 Forms Page 8 of 14 C/COMA/552/2016 ORDER
Date of inspection of properties 11.04.2018 (between 11.30 AM to 4.30 PM) Last date of receipt of Offer / 26.04.2018 Tender Forms Auction / Intersebidding in the 3.52018 Hon'ble High Court of Gujarat at Ahmedabad [5] The Court having heard learned advocate Ms.Brahmbhatt for the Official Liquidator and learned advocate Ms.Raheja for the applicant and having considered the contents of the Official Liquidator's Report dated 08.03.2018 finds that as suggested by the Official Liquidator, upset price for sale of the movable assets of the company in liquidation could be fixed at Rs.15,00,000/ with EMD at Rs.1,50,000/ being 10% of the upset price and the Official Liquidator could be permitted to undertake the sale of the assets of the company in liquidation by way of eauction through eauction agency - M/s.E Procurement Agency Limited.
[6] In view of the above, it is ordered that the upset price and the EMD for sale of the movable assets of the company in liquidation presently lying in the shed (godown) of the main premises which was given on lease to the company in liquidation shall be Rs.15,00,000/ and Rs.1,50,000/ respectively. The Official Liquidator is permitted to publish sale proclamation in "Economic Times" English script in Ahmedabad edition and in "Sandesh" in Gujarati script in Ahmedabad edition as well as on website of the High Court of Gujarat and on website of the Ministry of Corporate Affairs. The Official Liquidator is also permitted to undertake the auction sale by way of eauction through e auction agency - M/s.Eprocurement Agency Limited. For the purpose of incurring necessary expenses, the Official Liquidator shall presently incur expenses from the common pool account maintained by the office of the Official Liquidator and such expenses shall be reimbursed / recouped later on from the sale proceeds of the movable assets of the company in liquidation. The sale schedule for sale of the movable assets of the company in liquidation shall be as stated above. The Official Liquidator shall place the outcome of the auction proceedings before this Court Page 9 of 14 C/COMA/552/2016 ORDER by filing fresh report in the proceedings of the present application for the purpose of making further order for sale of the movable assets of the company in liquidation. S.O. to 9th May 2018."
9.0. The OL has filed a further report dated 26.06.2018. The OL has stated that advertisements were given as per the order dated 2.4.2018 passed by this Court and has also stated that bill of Rs.84,531/ is raised by the advertising agency. It is also stated by the OL that 8 intending purchasers took inspection of the assets and properties of the company in liquidation. However, till last date, no tender form was sold. The OL has further averred that the applicant informed OL by communication dated 11.04.2018 that out of machineries lying in the aforesaid godown, one machine belong to the applicant, relying upon invoice dated 10.02.2011 and by the said communication the OL is requested by the applicant not to put said machine for sale along with plants and machineries of the company in liquidation. The OL has further contended that this aspect was not pointed out when the possession was taken on 28.06.2016 and therefore, the valuer has carried out inventory / valuation of the entire plants and machineries lying in the godown, which is at serial no. 1 of the inventory / valuation report dated 09.07.2016. The OL has also further stated that while taking possession of the assets of the company in liquidation neither the representative of the erstwhile company i.e. company in liquidation remained present nor representative of the applicant informed about their machine.
9.1. The OL has further stated that in order to verify the say of the applicant, the OL wrote a letter dated 08.05.2018 to M/s Bhoomi Industries who had manufactured and sold the machineries claimed Page 10 of 14 C/COMA/552/2016 ORDER by the applicant asking them to confirm from their records that whether company in liquidation had purchased the said machinery or not and such letter was also written to the exdirector of the company in liquidation. The OL has brought on record the letter dated 30.05.2018 addressed by M/s Bhoomi Industries that the said machine in question was sold to the present applicant vide their invoice no. 71 dated 17.02.2011, for which, they had received full and final payment from the present applicant. In light of the aforesaid, therefore, OL prayed before this Court that said machine be excluded from the list of the valuation report prepared by the learned valuer and the OL be permitted to refer the valuation report dated 09.07.2016 back to the valuer Shri Naresh Shah asking him to exclude machine claimed by the applicant and furnish revised valuation report in sealed cover. The OL has also further payed in the said report that on facts stated in the said report no offers were received by the intending purchasers till last date of tender i.e. 26.4.2018 be taken on record.
9.2. The OL has thereafter filed a further report dated 06.09.2018. This Court during the course of hearing directed the OL to transfer the movable articles i.e. plants and machineries from godown situated at the plot in question to the factory premises of the company in liquidation situated at Changodar, Tal: Sanand, Dist. Ahmedabad being plot no. 84, Changodar Industrial Estate and accordingly OL informed secured creditors, security agency as well as panel valuer requesting them to remain present on 03.08.2018 in order to assist the OL for effecting transfer of movable properties i.e. plants and machineries in the plot in question to factory premises. It is brought on record that accordingly all remained present and Page 11 of 14 C/COMA/552/2016 ORDER ultimately the plants and machineries except machine in question were transferred in five trucks from the plot in question to the factory premises at Changodar. The OL has further brought on record the fact that because of hugeness of five machines, same could not be taken inside factory premise and same be kept outside in the open ground and remaining movables i.e. plants and machineries were kept in factory premises. The OL has also brought on record the minutes of the said transfer which was drawn on 03.08.2018. The OL has further contended that owner of the applicant visited the premises and requested not to transfer machine which is claimed by him in the present application. The OL has further brought on record that after discussion and deliberation it was unanimously decided by the representatives of OL and the Bank not to transfer machine which is claimed by the applicant and same is kept in godown under the custody of the OL. The OL has further averred that as per the oral directions given by this Court during the hearing of this application which took place on 6.8.2018, the remaining plants and machineries were removed on 08.08.2018 in presence of the officials of the OL, the authorized representative of Oriental Bank of Commerce, Security Supervisor and with the help of the labourers and by availing service of two trucks, except the machine which is claimed by the applicant, all the movables i.e. plants and machineries has now been shifted to the factory premises of company in liquidation. The OL has also placed on record the copies of action taken on 08.08.2018. The OL has further contended that security agency of M/s. Shubham Protection Force which is empaneled security agency has also raised bill of Rs.1,04,548/for incurring expenses while transferring and shifting movables articles from godown to the factory premises at Changodar. The OL has also brought on record that valuer Mr. Page 12 of 14 C/COMA/552/2016 ORDER Naresh Shah has submitted the fresh inventory cum valuation report in a sealed cover on 6.8.2018. In the aforesaid premises, the OL has contended that this Court may ratify the action taken by the OL compliance with the oral orders dated 16.07.2018 and 03.08.2018 and have shifted whole plants and machineries except the machine claimed by the applicant. The OL has also further prayed that the valuation report dated 06.08.2018 be taken on record and the OL has also prayed that OL may be permitted to reimburse the amount of Rs.1,04,548/ incurred by M/s. Shubham Protection Force from the common pool account since there is insufficient fund in the account of the company in liquidation subject to condition that same will be recouped out of the sale proceeds of assets of the company in liquidation on priority basis as liquidation expenses before making any payment to any creditors. The OL has also prayed permitting the OL to handover the possession of machine claimed by the applicant along with godown situated at plot no. 1307/1308, Phase3 GIDC, Vatva, Ahmedabad to authorize representative of M/s Binakiya Impex Private Limited.
10. Learned advocates for the respective parties have reiterated the aforesaid facts. As far as machine is concerned, it is clarified in the report filed by the OL dated 26.06.2018 that the machine in question belongs to the applicant. On perusal of the letter dated 30.05.2018 addressed by Bhoomi Industries (at page 175 of the paper book) as well as copy of invoice annexed thereto, it is evident that the machine in question with was purchased by the applicant from M/s. Bhoomi Industries, for which, invoice was raised on 17.02.2011. Therefore, it clearly appears that the machine in question belongs to present applicant. Considering the document and the averments made in the report filed by the OL, it is crystal clear that plot being Page 13 of 14 C/COMA/552/2016 ORDER nos.1307/1308 situated in GIDC, Vatva, Ahmedabad belongs to the applicant, which was leased by applicant to the company in liquidation by lease deed dated 18.09.2012, which came to be terminated. Considering the record of the application, the plot in question does not belong to company in liquidation and therefore, OL is required to return back the possession of the same to the present applicant. The application is therefore, allowed as prayed for and the OL is further directed to handover possession of the machine i.e. Aluminum Foil Converter Machine lying in the godown to the applicant. The OL shall handover the possession of the godown as well as machine after preparing the proper panchnama. In facts of this case, the OL is also permitted to make payment of Rs.1,04,548/ as reimbursement for the expenses incurred by the security agency of M/s. Shubham Protection Force from the common pool account, which shall be reimbursed as liquidation expenses out of the sale proceeds on priority. The OL shall take steps to dispose of the movable now lying i.e. plants and machineries by filing appropriate report as expeditiously possible. The summons is thus, accepted to the aforesaid extent. The application stands disposed of with aforesaid directions.
(R.M.CHHAYA, J) KAUSHIK J. RATHOD Page 14 of 14