Gujarat High Court
Sai Info System -India- Ltd vs Utopia Travel Services Pvt Ltd on 8 February, 2017
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
O/COMA/196/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
COMPANY APPLICATION NO. 196 of 2016
In COMPANY PETITION NO. 20 of 2014
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SAI INFO SYSTEM -INDIA- LTD....Applicant(s)
Versus
UTOPIA TRAVEL SERVICES PVT LTD....Respondent(s)
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Appearance:
MR ADITYA A GUPTA, ADVOCATE for the Applicant(s) No. 1
MR AR GUPTA, ADVOCATE for the Applicant(s) No. 1
MR ADITYA MEHTA FOR MR KUNJAL PANDYA, ADVOCATE for Respondent No.1
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CORAM: HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
Date : 08/02/2017
ORAL ORDER
1. This application has been preferred by the applicant (original respondent in Company Petition No.20/2014) with a prayer to vacate the exparte ad interim order dated 02.07.2015, passed by this Court in Company Petitions Nos.121/2014, 312/2013, 20/2014, 59/2014 and 80/2014, whereby adinterim relief in terms of paragraph27(d) has been granted.
2. Mr.Aditya Gupta, learned advocate for the applicant submits that the above petitions have been filed by different companies for the winding up of the respondentCompany. If the order dated 02.07.2015 is Page 1 of 11 HC-NIC Page 1 of 11 Created On Sun Aug 13 11:36:19 IST 2017 O/COMA/196/2016 ORDER perused, it is evident that the learned advocate for the petitioner in one of the petitions only has been heard. The reason why the said order has been passed is that the learned advocate for the respondent Company had withdrawn his appearance and there was no one to represent the said company on the said date of hearing, therefore, in view of the submissions canvassed on behalf of the learned advocate for the petitioner in one of the petitions, adinterim relief in terms of paragraph27(d) was granted. It is submitted that adinterim relief in terms of paragraph27(d) has only been granted in Company Petition No.121/2014 and not in any other petitions. In all the petitions, the interim relief has been worded differently. However, the more drastic relief of paragraph27(d) has been granted and is being enjoyed by the petitioners of the other petitions, though not specifically prayed for in the other petitions.
3. The applicantCompany was going through financial difficulties, therefore, at that point of time it was not being represented by any advocate during the Page 2 of 11 HC-NIC Page 2 of 11 Created On Sun Aug 13 11:36:19 IST 2017 O/COMA/196/2016 ORDER hearing before this Court. As such, the order dated 02.07.2015 can be said to be an exparte interim relief as there was no effective representation of the respondent company before the Court on the date it was passed. It is submitted that if the wording of paragraph27(d), in terms of which the order has been passed is perused, it is clear that the order is a drastic one, restraining the company from carrying on its daytoday business or operating its bank accounts and even making payments to its employees, workers, suppliers etc. If the interim relief is continued, the applicant Company cannot be rehabilitated or revived and would suffer irreparable loss as it would be unable to give employment to other employees or contribute to the economy of the country. The interim order would have the effect of restraining the applicantCompany from discharging its liabilities by paying its Creditors.
4. Learned advocate for the applicant further submits that in the present petition, the interim relief is prayed for in paragraph7(c) wherein it has been prayed to pass a restraint order against the Page 3 of 11 HC-NIC Page 3 of 11 Created On Sun Aug 13 11:36:19 IST 2017 O/COMA/196/2016 ORDER applicant from transferring, disposing of or parting with possession or creating third party right, title or interest in respect of the assets and income of the applicant Company. However, the petitioner Company is enjoying the relief vide paragraph27(d) of Company Petition No.121/2014, without having prayed for it. It is, therefore, submitted that the interim relief be vacated.
5. Mr.Aditya B. Mehta, learned advocate for Mr.Kunjal D. Pandya, learned advocate the opponent (original petitioner) has submitted that the applicant is indebted to the opponent Company for the principal amount of Rs.20,22,851/ as on 05.09.2013.
6. This Court has heard learned counsel for the respective parties at length, perused the averments made in the application and accorded thoughtful consideration to the submissions advanced at the Bar.
7. It is no doubt true that the applicant Company is facing windingup proceedings filed by five petitioner companies, including the present opponent. It is equally true that the outstanding claim of the Page 4 of 11 HC-NIC Page 4 of 11 Created On Sun Aug 13 11:36:19 IST 2017 O/COMA/196/2016 ORDER different petitioner companies are quite high and the petitions require consideration. However, this Court cannot overlook the fact that each petition has been filed on the facts and in the circumstances of the individual cases and the facts in each petition are different. Every petitioner has not prayed for so drastic an interim relief as the petitioner of Company Petition No.121/2014. The interim relief in terms of paragraph27(d) in Company Petition No.121/2014 is reproduced hereinbelow :
"27(d) that pending the hearing and final disposal of the present petition, the respondent Company, its directors, servants and agents be restrained by an order and injunction of this Hon'ble Court, from in any manner either directly or indirectly.
i. carrying out any further business and/or in any manner dealing with or disposing of or creating third party interest or rights in any of its assets and/or the equipments under the Identified Obligor Contracts;
ii. operating in any manner and/or from withdrawing any amount from its bank account or bank account(s) save and except in relation to any payments required to be made in respect of statutory/regulatory compliances;
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O/COMA/196/2016 ORDER
iii. Making any payment to any person whether natural or juristic in any manner whatsoever;"
8. The interim relief in terms of the above paragraph has not been prayed for in the petitions filed by the opponent wherein interim relief has been prayed for in paragraph7(c) in the following terms:
"7(c) Pending hearing and final disposal of the petition, the respondent company, their directors be restrained by the order and injunction of this Hon'ble Court from in any manner transferring or disposing off or parting with possession or creating third party right, title or interest in respect of the assets and income of the respondent company."
9. If the two reliefs are compared, it is obvious that the relief at paragraph27(d) sought in Company Petition No.121/2014 is much wider in scope and ambit and is much more harsh and drastic than the reliefs claimed in the petition filed by the opponent.
10. There cannot be any doubt regarding the fact that this Court has jurisdiction to pass an order of restraint in any terms that it feels fit while dealing with an appropriate case. However, a perusal of the Page 6 of 11 HC-NIC Page 6 of 11 Created On Sun Aug 13 11:36:19 IST 2017 O/COMA/196/2016 ORDER order dated 02.07.2015 would go to show that the respondent company was not properly represented when the said order was passed. In fact, it can be said that it was not represented at all, as the learned advocate who was appearing for the respondent company was permitted to withdraw his appearance as is stated in the said order. He, therefore, made no submissions in defence of the respondent company. In that sense, it can be said that the order dated 02.07.2015 was an exparte adinterim order insofar as the applicant was concerned.
11. Another aspect of the matter is that the interim relief in terms of paragraph27(d) of Company Petition No.121/2014 has been granted in all the petitions by way of a common order. At that point of time, it does not appear that any of the learned advocates for the individual petitioner company pointed out to the Court that such relief had not been prayed for by them in their individual petitions. A petitioner is entitled only to the relief it claims except in a case where the Court, after considering the individual facts and circumstances, considers it appropriate to mould the Page 7 of 11 HC-NIC Page 7 of 11 Created On Sun Aug 13 11:36:19 IST 2017 O/COMA/196/2016 ORDER relief and grant such relief as it deems fit and appropriate, even if not specifically prayed for. A perusal of the order dated 02.07.2015 would indicate that learned counsel for the petitioners have not brought to the notice of the Court these aspects of the matter and the only reason for the grant of an interim order are the submissions on behalf of the learned advocate for the petitioner in Company Petition No.121/2014 and the fact that the respondent Company was not represented.
12. At that point of time, the Court has passed the order that appeared to be appropriate at that stage. However, today, when the respondent Company is represented by an advocate and submissions have been advanced on the aspect of interim relief, before granting which the respondent company was not heard, it becomes obligatory on the part of the Court to consider the submissions advanced by the party against whom the interim relief has been granted, as such party was not heard at the time of the passing of the order. If the Court considers that its own order is required to be either vacated or modified after such Page 8 of 11 HC-NIC Page 8 of 11 Created On Sun Aug 13 11:36:19 IST 2017 O/COMA/196/2016 ORDER hearing, it would not hesitate to do so in order to prevent any miscarriage of justice. Power is available to the Court to modify its own order passed without hearing a party, therefore, it cannot be termed as a review of the said order.
13. At the same time, while considering whether the order of the Court is required to be vacated or modified, the Court has to keep in mind the gravity of the situation as well. Just because the applicant was not heard does not mean that the entire order is required to be set aside and no interim relief is to be granted to the opponent.
14. The facts of the case of the opponent are required to be considered after hearing both the parties, which would take a considerable period of time looking to the complicated nature of the case. The submissions advanced by learned advocate for the opponent that the restraint order as prayed for in Company Petition No.20/2014, out of which the present application emanates are also required to be accorded due consideration.
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15. The claim of the opponent is that the respondent company is indebted to the tune of principle amount of Rs.20,22,851/ as on 05.09.2013 which would be the subjectmatter of the company petition. However, pending the said petition it cannot be said that the opponent does not deserve any interim relief whatsoever, especially in the context of the facts and circumstances that have been pointed out in the petition itself, which this Court would not like to go into, at this stage.
16. Under the circumstances and after considering and balancing the rival submissions, this Court is of the view that though the order dated 02.07.2015, passed by this Court granting adinterim relief in terms of paragraph27(d) of Company Petition No.121/2014 is required to be modified since this relief has not been claimed in the petition filed by the opponent, however, the interim relief that has actually been claimed by the opponent is required to be granted.
13. Accordingly, the following order is passed:
In Company Petition No.20/2014, the adinterim Page 10 of 11 HC-NIC Page 10 of 11 Created On Sun Aug 13 11:36:19 IST 2017 O/COMA/196/2016 ORDER relief granted in terms of paragraph27(d) (of Company Petition No.121/2014) stands vacated. Instead of that, interim relief in terms of paragraph7(c) of Company Petition No.20/2014, is granted and shall remain in place till the final decision of the Company Petition.
It is, however, clarified that the grant of interim relief in the above terms would not restrain the applicant Company from carrying on its business in the normal course or paying off its employees and creditors.
The application is disposed of, in the above terms.
(SMT. ABHILASHA KUMARI, J.) Gaurav+ Page 11 of 11 HC-NIC Page 11 of 11 Created On Sun Aug 13 11:36:19 IST 2017