Gujarat High Court
Gujarat Industrial Investment ... vs O L. Off Alex Cables Ltd. (In Liqn) & 2 on 13 January, 2016
Author: N.V.Anjaria
Bench: N.V.Anjaria
O/OJMCA/137/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC. CIVIL APPLICATION (OJ) NO. 137 of 2015
In COMPANY APPLICATION NO. 277 of 2014
In COMPANY PETITION NO. 100 of 2006
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GUJARAT INDUSTRIAL INVESTMENT CORPORATION LTD....Applicant(s)
Versus
O L. OFF ALEX CABLES LTD. (IN LIQN) & 2....Respondent(s)
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Appearance:
MR SANDEEP N BHATT, ADVOCATE for the Applicant(s) No. 1
MR AS ASTHAVADI, ADVOCATE for the Respondent(s) No. 2
MR BHARGAV HASURKAR, ADVOCATE for the Respondent(s) No. 1
NOTICE UNSERVED for the Respondent(s) No. 3
OFFICIAL LIQUIDATOR for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 13/01/2016
ORAL ORDER
1. Company Application No. 309 of 2013 in Company Petition No. 100 of 2006 with Company Application No. 277 of 2014 came to be disposed of by common order dated 24.12.2014. The said Company Applications were for the prayers to disburse the amounts towards discharge of dues of Gujarat Industrial Investment Corporation (GIIC)-the applicant herein.
2. The aforesaid order inter alia on the basis of facts on record, recorded as under.
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"3.4 The Official Liquidator has filed his Report in Company Application No.309 of 2013 stating inter alia that pursuant to order dated 09th September, 2009 passed in Official Liquidator Report No.116 of 2008 the Official Liquidator obtained verification report from Chartered Accountant M/s.Bhagat Mehta Parikh Shah and Associates who gave their report on 19th January, 2010. As per the said verification report of the Chartered Accountant, percentage ratio between the secured creditors is worked out as under.
Sr. Particulars Eligible Ratio
Claim (%)
No.
(Rs.)
1 Gujarat 1,45,46,407 34.14%
Industrial
Investment
Corporation
2 JMFARC (BOB) 2,80,64,044 65.86%
TOTAL 4,26,10,451 100.00
%
3.5 M/s.J.M. Financial Asset Reconstruction Company Private Limited-respondent No.3 has accepted the verification report of the Chartered Accountant, whereas GIIC raised objections as per its letter dated 28th September, 2010 with regard to sharing pattern fixed by the Chartered Accountant. Chartered Accountant, it is stated, were asked to re-examine the point raised by GIIC and as per the supplementary report thereupon given by the said Chartered Accountant, percentage ratio was worked out as under.
Sr. Particulars Eligible Ratio
Claim (%)
No.
(Rs.)
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O/OJMCA/137/2015 ORDER
1 Gujarat 1,45,46,407 100%
Industrial
Investment
Corporation
2 Workers - -
TOTAL 1,45,46,407 100%
6. Accordingly the Official Liquidator is permitted to disburse amount of Rs.01,45,46,407/- to GIIC towards its full and final settlement against its dues receivable from the company in liquidation. It is further provided that the Official Liquidator shall disburse and pay the amount at the earliest.
6.1 It is further directed that GIIC shall file undertaking that it shall refund the amount to the Official Liquidator if on any count in future, it is required to pay back the amount to the Official Liquidator even in part or in the event it is found at a later stage that it was paid amount in excess, with interest at the prevailing rate of interest."
3. The GIIC has filed the present application for modification/review praying as under.
"to modify the order dated 24.12.2014 passed in Company Application No. 277/2014 by directing that observation made in para-6 of order that it is towards full and final settlement is only for outstanding as on date of winding up order and may further clarify that amount accrued by way of interest and penal interest in the account of the company in liquidation (M/s. Alex Cable) can be recovered by GIIC by following appropriate procedure"
4. Learned advocate Mr. Sandeep Bhatt submitted that since the order dated 24.12.2014 in its paragraph No.6 Page 3 of 5 HC-NIC Page 3 of 5 Created On Sat Jan 16 01:52:01 IST 2016 O/OJMCA/137/2015 ORDER above recorded that the disbursement of amount of Rs. 01,45,46,407/- by the official liquidator as "full and final settlement" towards dues of GIIC, the phrase "full and final settlement" would stand in way of the applicant GIIC to proceed to recover further dues. It was submitted that dues of GIIC against the company amounts to Rs. 8,66,23,122/-
4.1 On the other hand, learned advocate Mr. Bhargav Hasurkar for the Official Liquidator submitted that no modification or review is necessary inasmuch as the amount is fully paid to the company and if at all cause of action to recover further amount is available, that would fall in the realm of different law, other than the company jurisdiction. Learned advocate Mr. Asthawadi for the Director of the Company in liquidation submitted that the review is not maintainable and for the purpose, he relied on the principles laid down in decision of the Apex Court in the case of Kamlesh Verma vs. Mayavati & Ors. [(2013) 3 GLH 143].
5. As is recorded in the order disposing of the company applications, the amount of Rs. 01,45,46,407/- permitted to be disbursed to the applicant GIIC was based on report of the Chartered Accountant. The contents of paragraph No. 3.4 and 3.5 qoted hereinabove make this aspect clear. Furthermore, amount was payable to the applicant as above was determined with reference to the assets of of the company in liquidation which were dealt with by the Page 4 of 5 HC-NIC Page 4 of 5 Created On Sat Jan 16 01:52:01 IST 2016 O/OJMCA/137/2015 ORDER Official Liquidator. The applicant's case is that still there are dues recoverable by it. If this be the position, the observations shall not preclude him from taking appropriate action if permissible in law other than the company law.
6. Subject to aforesaid observations, no ground is made out for modification or review.
7. Hence, the application is dismissed.
(N.V.ANJARIA, J.) cmjoshi Page 5 of 5 HC-NIC Page 5 of 5 Created On Sat Jan 16 01:52:01 IST 2016