Delhi High Court
Shiv Kant vs Union Of India And Others on 12 November, 2018
Equivalent citations: AIRONLINE 2018 DEL 2213
Bench: Sanjiv Khanna, Chander Shekhar
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WRIT PETITION (CIVIL) No. 5890/2018 & CM.22952/2018
& 43730-33/2018
Reserved on: 2nd November, 2018
Date of decision: 12th November, 2018
SHIV KANT ..... Petitioner
Through Mr. Gopal Jain, Sr. Advocate with Mr. Amit
Dubey & Mr. Jayant Mehta, Advocates.
versus
UNION OF INDIA AND OTHERS .....Respondents
Through Mr. Dev. P. Bhardwaj, CGSC & Ms.
Akanksha Mishra, Advocate for respondent Nos. 1, 2
and 16.
Ms. Purti Marwaha & Ms. Henna George, Advocates
for the respondent-J.K. Jute Mills Company Limited.
Ms. Geeta Luthra, Sr. Advocate with Mr. Ujjawal Jain
& Mr. Prateek Yadav, Advs for respondent No. 4.
Mr. Gaurav Kejriwal & Mr. Atanu Mukherjee,
Advocates for respondent No. 7.
Mr. Ashok Kumar Jain & Mr. Karan Khanna,
Advocates for respondent No. 8.
Mr. G.S. Narula, Mr. Bhavit Yadav, Mr. Kushal
Mangal & Ms. Shefali Chopra, Advocates for
respondent Nos. 9 and 10.
Mr. Avneesh Garg & Ms. Vaishali Dixit, Advocates
for the applicant/impleader.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE CHANDER SHEKHAR
W.P. (C) No. 5890/2018 Page 1 of 43
SANJIV KHANNA, J.:
Shiv Kant, who claims that he is an existing worker of M/s J.K. Jute Mills Company Limited, (now known as Geo Jute Limited) has filed the present writ petition with the following prayers:-
"(a) pass an appropriate order, direction, writ declaring section 4(b) of the Sick Industrial Companies (Special Provisions) Repeal Act, 2003 read with section 252 of the Insolvency and Bankruptcy Code, 2016 as unconstitutional in so far it abates the proceedings before BIFR & AAIFR and does not provide for efficacious remedy for implementing the directions passed by the Hon‟ble Supreme Court on 13-11-2014 and 18-11-2016 before the Adjudicating Authority under the provisions of IB Code, 2016;
(b) pass an appropriate order, writ, direction upon Union of India to remove difficulty and provide remedy for implementing/execution of the directions passed by the Hon‟ble Supreme Court on 13-11-2014 and 18.11.2016 read with the order dated 6-12-2017 passed by this Hon‟ble Court;
Alternatively,
(i) pass an appropriate order, writ, direction declaring the illegal sell of assets/undervalued transaction at Saifganj, Katihar, Bihar on 2-7-2014 as void ab initio & restore the position as it existed before the said transaction;
(ii) pass an appropriate order, writ, direction declaring the undervalued lease transaction dated 4-5-2017 in favour of M/s Skyscappers Niwas Pvt. Ltd. as void ab initio & restore the position as it existed before the said transaction;W.P. (C) No. 5890/2018 Page 2 of 43
(iii)pass an appropriate order, writ, direction declaring the illegal sell of assets/undervalued transaction on 5-5-
2017 & 8-5-2017 in favour of M/s Kurina Real Estate Pvt. Ltd. as void ab inito & restore the position as it existed before the said transaction;
(c) pass an appropriate order, direction, writ in the nature of mandamus directing the Adjudicating Authority to carry on with the investigation into all undervalued transaction including the investigation which was started by BIFR as per directions passed by this Hon‟ble Court on 6-12-2017;
(d) pass an appropriate order, direction, writ for appointment of Court Receiver for preservation of the assets of JK Jute Mills Company Ltd.;
(e) pass such other further order/order(s) as this Hon‟ble Court may be deemed fit and proper in the facts and circumstances of the instant case."
2. The petitioner has also filed CM No. 22952/2018 praying for interim relief and direction against M/s J.K. Jute Mills Company Limited (now known as Geo Jute Limited), the Respondent No.1 for short and its subsidiaries, namely, M/s JKJM Construction Private Limited, M/s JKJM Housing Private Limited, M/s JKJM Warehousing Private Limited, M/s JKJM Properties Private Limited and M/s JKJM Infrastructure Private Limited, the Respondent Nos. 11 to 15 for short, from entering into any transactions for sale of properties at Katihar, which was sold vide sale deed dated 2nd July, 2014 to M/s Thapar Herbs and Spices Private Limited ('the W.P. (C) No. 5890/2018 Page 3 of 43 fourth respondent' for short), the property located in Dismil Abdulla Nagar, District Purnea, Bihar statedly sold vide sale deed dated 5th May, 2017 to M/s Kurnia Real Estate Private Limited ('the Respondent No.10' for short) and the property located at Kalpi Road, Kanpur, subject matter of lease deed dated 15th May, 2017 with M/s Skyscrappers Niwas Private Limited (now known as M/s Skyscraper Jute and Mining Private Limited), the Respondent No. 9 for short.
3. Reference made by the third respondent under the Sick Industrial Companies (Special Provisions) Act, 1985 ('the SIC Act', for short) was registered on 16th December, 1994 and the third respondent was declared a „sick company‟ by the Board for Industrial and Financial Re-construction ('the BIFR' for short).
4. During pendency of the proceedings, a civil suit was instituted in District Kamrup, Assam to declare that the BIFR had ceased to have jurisdiction as the net worth of the third respondent had turned positive and it was not a sick company under SIC Act. The third respondent in the written statement did not object to the jurisdiction of the civil court and had admitted that their net worth had become positive. The civil court passed an order restraining further proceedings before the BIFR. Thereupon, W.P. (C) No. 5890/2018 Page 4 of 43 appearance was made by third parties opposing the proceedings before the civil court. The matter reached the Supreme Court. On 8th May, 2014, a restraint order was passed by the Supreme Court directing that capital assets of the third respondent would not be disposed of without taking permission of the Court. The Supreme Court vide judgment dated 13th November, 2014 reported as (2015) 1 SCC 298 after referring to the provisions of SIC Act held that the civil court lacked subject-matter jurisdiction and that the BIFR alone was competent to satisfy itself and determine whether the net worth of the third respondent had turned positive. If the BIFR was so satisfied, it would de-register the third respondent and thereupon the respondent would be out of supervisory jurisdiction of the BIFR under the Act. In case the net worth of the respondent no.3 had not turned positive, the BIFR would go ahead and consider the Draft Revival Scheme (DRS, for short) for revival. Two months‟ time was granted to the BIFR for the said purpose. The second issue examined by the Supreme Court related to transfer/sale of Katihar property by the third respondent to the fourth respondent vide sale deed dated 4th April, 2013 registered on 2nd July, 2014. On the issue/question of the transfer, following observations and directions were made:- W.P. (C) No. 5890/2018 Page 5 of 43
"38. Since in our view the Company continues to be a sick company and it was not competent for anyone except BIFR to determine whether the net worth of the Company had turned positive, we hold the sale of Katihar property effected by the Company without express leave or permission of BIFR to be questionable. However, since the transferee of that property is not before this Court we relegate this matter for appropriate assessment by BIFR after issuing due notice to the transferee. We also leave it to BIFR to consider and assess whether there was any necessity or expediency to sell the property in question. If in its opinion such expediency and necessity are established, BIFR may also consider whether the value that the property has fetched is adequate or not. If the value is adequate it may confirm the sale in favour of the transferee. However, if the value in its opinion is inadequate, it shall give offer and adequate time to the transferee to make good the deficit. In any case if the sale is held to be bad or if the transferee is not willing to make good the deficit, the entire consideration for the transaction be returned to the transferee. In such eventuality whatever the transferee has paid in excess of the consideration money towards stamp duty and registration shall be recovered from the Directors and persons responsible for effecting such sale on behalf of the Company."
As the transfer of the Katihar property to the fourth respondent was despite the restraint order dated 8th May, 2014 directing the third respondent not to transfer their capital assets, the Supreme Court vide order dated 13th November, 2014 had observed and held:-
W.P. (C) No. 5890/2018 Page 6 of 43
"40. The appeals are allowed in the aforesaid terms. FAO No. 10 of 2013 thus stands allowed and Writ Petitions Nos. 4303 and 6286 of 2013 are dismissed. As regards Contempt Petitions Nos. 338 and 375 of 2014, since this Court had not issued any notice to the alleged contemnors, we have not dealt with said petitions. By a separate order we issue appropriate notice to the alleged contemnors."
5. The fourth respondent was not impleaded as a party to the appellate proceedings disposed of by the Supreme Court vide aforesaid judgment dated 13th November,2014. However, the said respondent was impleaded as a party to the contempt proceedings, which were disposed of and decided vide decision dated 18th November, 2016 reported as (2017) 1 SCC 599. By this judgment the third respondent and its Directors/servants were held to be guilty of transgression and violation of the interim order dated 8th May, 2014, albeit the fourth respondent and its Directors/servants had not violated the order. In totality of circumstances, the Supreme Court did not think it appropriate to exercise their power and invalidate the sale deed registered on 2nd July, 2014. Fine of Rs.2,000/- each was imposed on the third respondent and its Directors/servants for having violated the order dated 8th May, 2014. For the purpose of clarity, we would like to reproduce some paragraphs of the said judgment, which read as under:-
W.P. (C) No. 5890/2018 Page 7 of 43
"23. We now turn to the involvement of alleged Contemnors 14, 15 and 16 who are the transferee Company and its Directors/servants. These alleged contemnors were neither parties to the proceedings pending in this Court in which the order of 8-5-2014 [Ghanshyam Sarda v. Shiv Shankar Trading Co., (2015) 1 SCC 298, 316 (footnote 14)] was passed nor is there any material to indicate that such order was ever served on them or brought to the notice of these alleged contemnors. The role played by alleged Contemnor 17, however, stands on a different footing. The documents on record do show that he used to represent the Company and was also given authority to collect documents on behalf of the Company from the office of the BIFR. Further, on his own showing, he had gone ahead and registered the document not on the asking of the transferee. He had gone along with the Directors of the Company and on the directions of alleged Contemnor 3. The knowledge about the passing of the order of 8-5- 2014 [Ghanshyam Sarda v. Shiv Shankar Trading Co., (2015) 1 SCC 298, 316 (footnote 14)] to the Company and its Directors having been established, there is room for suspecting the involvement of alleged Contemnor 17.
But mere suspicion may not be enough and we give him benefit of doubt. Thus, none of the alleged Contemnors 14 to 17 have been proved to be guilty of violation of the order of 8-5-2014 [Ghanshyam Sarda v. Shiv Shankar Trading Co., (2015) 1 SCC 298, 316 (footnote 14)] .
24. As regards the involvement of alleged Contemnors 2 and 3, they were neither Directors nor shareholders of the Company nor has it been shown that they have any stake or interest in the transferee Company. It is undoubtedly true that alleged Contemnor 17 in his affidavit stated that he used to work under the directions of alleged Contemnors 2 and 3 and that the registration of the document on 2-7-2014 was done under the express W.P. (C) No. 5890/2018 Page 8 of 43 directions of alleged Contemnor 3. However, such a statement coming from a co-contemnor, in our view, is not sufficient to reach a conclusion about the involvement of alleged Contemnor 3. Further, the documents pertaining to Writ Petition No. 5670 (W) of 2016 pending in the Calcutta High Court as well as the affidavit filed by Dinesh Sarda are also not conclusive enough. The criticism that such documents and the affidavit of Dinesh Sarda are conveniently brought on record, would also require assessment of facts. Thus, though there is room to suspect the involvement of the said Contemnors 2 and 3, the material on record is not conclusive enough to hold them guilty of violation of the order of 8-5-2014 [Ghanshyam Sarda v. Shiv Shankar Trading Co., (2015) 1 SCC 298, 316 (footnote 14)] . We, therefore, close these proceedings as against them.
25. XXXXX
26. In the present case the Company and its Directors/servants were certainly guilty of transgressing or violating the order of 8-5-2014 [Ghanshyam Sarda v. Shiv Shankar Trading Co., (2015) 1 SCC 298, 316 (footnote 14)] but as found hereinabove, the transferee and its Directors/servants have not violated the order of 8-5-2014 [Ghanshyam Sarda v. Shiv Shankar Trading Co., (2015) 1 SCC 298, 316 (footnote 14)] . The transferee and its Directors/servants were neither parties to the proceedings nor were they served with the order of 8-5-2014 [Ghanshyam Sarda v. Shiv Shankar Trading Co., (2015) 1 SCC 298, 316 (footnote 14)] . In para 38 of the judgment of this Court dated 13-11-2014 [Ghanshyam Sarda v. Shiv Shankar Trading Co., (2015) 1 SCC 298] , this Court had found the transfer in favour of the transferee to be questionable and had relegated the matter to the BIFR to consider the matter in the light of directions contained in said para 38. In the circumstances, W.P. (C) No. 5890/2018 Page 9 of 43 no further orders are called for invalidating the registration dated 2-7-2014. Further, according to the record the transferee had parted with full consideration way back on 4-4-2013. In the totality of these circumstances we do not think it appropriate to exercise our power to invalidate the effect of registration of the document on 2-7-2014.
27. We thus find the Company and its Directors/servants, namely, alleged Contemnors 1, 4, 5, 6, 7 and 8 guilty of having violated the order of 8-5-2014 [Ghanshyam Sarda v. Shiv Shankar Trading Co., (2015) 1 SCC 298, 316 (footnote 14)] . In our view, ends of justice would be met if fine is imposed on the contemnors. We impose fine of Rs 2000 on the Company. Further, fine of Rs 2000 each is imposed on Contemnors 4, 5, 6, 7 and 8. Fine shall be deposited with the Registry of this Court within four weeks from today. In case of failure by Contemnors 4, 5, 6, 7 and 8 to deposit the amount of fine within the time stipulated, they shall undergo sentence of simple imprisonment for one month."
6. Before the BIFR could decide the issues and aspects in terms of the judgment of the Supreme Court dated 13th November, 2014, the Sick Industrial Companies (Special Provisions) Repeal Act, 2003 (the Repeal Act, for short) was enacted and enforced with effect from 1 st December, 2016. Consequently, proceedings before the BIFR under SIC Act abated and came to an end, without adjudication. Simultaneously with the Repeal Act, Insolvency and Bankruptcy Code, 2016 (IBC, for short) was enacted W.P. (C) No. 5890/2018 Page 10 of 43 and enforced with effect from 1st December, 2016. As DRS was pending before the BIFR and had not been approved, the provisions in the IBC relating to deemed resolution plan were not applicable. (It was stated by the counsel for the third respondent that two DRS including one by the present management were pending when the Repeal Act was enforced and proceedings before the BIFR had abated.) This issue and question whether the third respondent had ceased and was not a sick company under SIC Act thus was not decided and adjudicated.
7. M/s. J.K. Jute Mills Mazdoor Ekta Union, a Trade Union, eighth respondent in the present writ petition, was a party to the proceedings before the Supreme Court. Similarly, Ghanshyam Sarda, who is respondent No. 7 in the present writ petition, was the appellant before the Supreme Court.
8. M/s. J.K. Jute Mills Mazdoor Ekta Union (hereinafter also referred to as 'the Union') had filed W.P. (C) No. 440/2017 before this Court for various reliefs, including a writ for declaring Section 4(b) of the Repeal Act, 2003 read with Section 252 of the IBC as unconstitutional insofar as the provisions abate the pending proceedings under the SIC Act before the BIFR and the appellate authority. They had also sought directions to remove difficulty and provide remedy to implement the orders of the Supreme Court W.P. (C) No. 5890/2018 Page 11 of 43 dated 13th November, 2014 and 18th November, 2016. The eighth respondent had stated that the jute mill was lying closed and the workers were out of job since March, 2014. They had not been paid wages and workers‟ dues were to the extent of Rs.127.90 crores. Claims made by Uttar Pradesh Commercial Tax Department, Employees' State Insurance Corporation, Employees' Provident Fund Organization, etc. were referred. On 26th May, 2017, a Division Bench of this court had passed the following order in W.P.(C)No. 440/2017, :-
"3. We are assured by Mr. A.S. Chandhiok, learned senior counsel representing the respondent no.3/company that the company has no intention of not abiding by any order of payment determining lawful dues payable to the workmen of the company and that every effort is being made to restructure the debts and revive the company. He submits that he shall file an affidavit of the respondent no.3 undertaking to pay such dues as are found lawfully due and payable to the workmen of the company. Such undertaking on affidavit shall be filed in this court within one week from today.
4. The respondent no.3 shall file an affidavit disclosing the assets which existed of the company on the date of repeal of the Act; the date on which the assets were alienated and the details of the transactions including the amounts received; the details of the disbursement of the amounts received on account of the transactions.W.P. (C) No. 5890/2018 Page 12 of 43
5. Without prejudice to the rival rights and contentions, the respondent no.3 shall preserve an amount of Rs.2.5 crores as is being claimed by the workmen."
9. Thereafter on an application, CM No. 19774/2017, filed by the eighth respondent - union, on 16th June, 2017 another order was passed by the Division Bench after referring to the affidavit filed by the third and fourth respondent. Relevant portion of this order reads as under:-
"5. An affidavit purportedly in response to para Nos.3 & 4 has been filed. In the affidavit, it is contended that there are no dues payable to the Workmen. With regard to the details that have been sought by paragraphs 4 & 5 of the order, i.e. (i) the disclosure of the assets which existed of the Company on the date of repeal of the Act (i.e. 01.12.2016); (ii) the date on which the assets were alienated; (iii) details of the transaction including the amounts received and (iv) details of the disbursement of the amounts received on account of the transaction, an affidavit has been filed by respondent No.3, which, inter alia, reads as under:-
"6. It may be noted that the respondent No.3 Company was constrained to declare a lockout in the year 2014 and presently, also is in lockout and no dues as alleged in the writ petition are payable to the workers/employees. The lockout of the Company was challenged by the workers before the Government of Uttar Pradesh and the same was declared illegal under the provision of Section 3 (a) of the U.P. Industrial Dispute Act 1947, which was challenged by the J. K. Jute Mills Company Limited in MISC. SINGLE No. 7208/2014 before the Hon‟ble Allahabad High Court, W.P. (C) No. 5890/2018 Page 13 of 43 Lucknow Bench. Thus the said legal issue is already pending before the Hon‟ble Allahabad High Court in MISC. SINGLE No. 7208/2014, wherein the Hon‟ble Allahabad High Court was pleased to issue interim order dated 19.11.2014. A copy of the MISC SINGLE No. 7208/2014 pending before the Hon‟ble Allahabad High Court is appended herewith and marked as Annexure A-2 and a copy of the order dated 19.11.2014 passed by the Hon‟ble Allahabad High Court in MISC. SINGLE No. 7208/2014 is appended herewith and marked as Annexure A-3.
**** **** **** ****
11. Further, Sick Industrial (Special Provisions) Companies (SICA) Repeal Act 2003 came into effect on 01.12.2016 and on the date of repeal of SICA, the respondent No.3 company owned the factory land, plant and machinery at 84/49, Zarib Chowki, Kalpi Road, Kanpur which was lying closed since 2014. The company also owns the property in Kolkata which has been given on a long term lease sometime in 1960‟s. This property is also mortgaged to third parties holding charge on the same. The above plant alongwith land and machinery and the bunglow has been leased to Skyskappers Niwas Private Limited w.e.f . 04.05.2017 by registered lease deed dated 15.05.2017. I further state that the respondent No.3 Company also has 5 subsidiaries being JKJM Construction Pvt Ltd, JKJM Housing Pvt Ltd, JKJ, Warehousing Pvt Ltd, JKJM Properties Pvt Ltd and JKJM Infrastructure Pvt Ltd which were created in the year 2013 and to whom certain assets of the respondent No.3 Company were transferred W.P. (C) No. 5890/2018 Page 14 of 43 including the Gulab Bagh property which was transferred to JKJM Housing Pvt Ltd.
12. It may be noted that the application filed by the petitioner refers to godown situated at Gulab Bagh, Bihar which is not owned by the respondent No.3 Company and is owned by JKJM Housing Pvt Ltd since 2013. The said property has been sold by registered sale deeds dated 05.05.2017 and 08.05.2017. Copies of registered sale deeds dated 05.05.2017 and 08.05.2017 are appended herewith as Annexure A-5 and Annexure A-6 respectively.
13. It may further be noted that the godown sold vide registered sale deeds dated 05.05.2017 and 08.05.2017 was at that time, leased to Jute Corporation of India, which is a government controlled company and has been sold on „As is where is basis‟. It may be noted that the respondent No.3 Company was not in the physical possession of the said property and the respondent No.3 Company has only transferred the title of the said property to its subsidiary and it is upto the subsidiary or the new buyer to obtain the possession of the said property though the respondent No.3 is helping the new Buyer and its subsidiary to take possession of the same.
14. It may be noted that the plant including land and machinery has been leased by the respondent No.3 Company in order to make best efforts to revive the plant and machinery which is evident from various clauses of the Agreement.
15. It is stated that Respondent No.3 Company will not get any amount from the sale W.P. (C) No. 5890/2018 Page 15 of 43 of godown situated at Gulab Bagh, Bihar and the same will be received by JKJM Housing Pvt Ltd as per the enclosed sale deeds.
16. As aforesaid, the present petition has not been filed by any genuine workmen and no specific claim or crystallized amount supported by any documents has been raised therefore the present petition is a mala fide attempt to harass the Respondent No.3 Company." (underlining supplied)
6. Reading of above paragraphs of the affidavit shows that respondent No.3 has been very vague in its disclosure. Respondent No.3 has stated that it owns property in Kolkata, which has been given on long term lease. The details and description of the said property has not been provided.
7. The Plant along with land and machinery and the Bungalow has been leased with effect from 04.05.2017 by way of registered lease deed dated 05.05.2017 & 08.05.2017. Neither a copy of the registered lease deed has been placed on record nor it has been disclosed what has been consideration received by way of security deposit or rental. The affidavit further states that respondent No.3 has five subsidiaries to whom certain assets of respondent No.3 have been transferred. No details of the assets, so transferred to the subsidiary Companies, have been specified in the affidavit. Even the details of the assets of the subsidiary Companies are not disclosed in the affidavit.
8. At this stage, learned counsel for the respondent No.3 submits that the details of the assets are available.
9. We are of the view that respondent No.3 has not made proper and accurate disclosure, as was directed by paragraph 4 of the order dated 26.05.2017.W.P. (C) No. 5890/2018 Page 16 of 43
10. At request of learned counsel for respondent No.3, one more opportunity is granted to respondent No.3 to file an affidavit in compliance of order dated 26.05.2017.
11. Let the affidavit be filed within a period of two weeks.
12. List before the Roster Bench on 06th July, 2017.
13. Till the next date of hearing, respondent No.3 as also the wholly owned subsidiaries of respondent No. 3, i.e. respondent Nos.8 to 12 shall not transfer, alienate or encumber or create any third party rights in any of its assets without leave of the Court"
The aforesaid paragraphs refer to the factum that lock out had been declared in the factory, which action had been made subject matter of challenge before the Allahabad High Court, Lucknow Bench. The order refers to the transaction regarding the land at Kanpur vide registered lease deed dated 5th May, 2017 by the third respondent with the ninth respondent. The order states that several assets of the third respondent had been transferred to the subsidiaries, who as noted above, have been impleaded as respondent Nos. 11 to 15 in the present writ petition. One of the subsidiaries in turn had sold the property at Gulab Bagh, Bihar vide sale deeds dated 5 th May, 2017 and 8th May, 2017 to the tenth respondent. Transaction relating to Kolkata property in the form of long-term lease was referred to and commented upon. Restraint order against transfer, alienation, encumbrance W.P. (C) No. 5890/2018 Page 17 of 43 or creation of third party rights was extended to the wholly owned subsidiaries.
10. By the order dated 6th July, 2017, the interim order was also made applicable to the fourth respondent before us (respondent No. 7 in the said writ petition). By another order dated 12th July, 2017 in W.P(C) No. 440/2017, the ninth respondent was directed to maintain status quo with regard to the factory, land, plant and machinery at Kanpur. By the order dated 21st August, 2017, the stay restraining transfer, alienation and/ or creation of third party rights was extended to M/s Kurnia Real Estate Private Limited, respondent No. 10 in the present writ petition.
11. Writ Petition (C) No. 440/2017 filed by the Union was disposed of vide order dated 6th December, 2017, which reads as under:-
"J.K. Jute Mills Mazdoor Ekta Union has invoked writ jurisdiction of this Court under Article 226 of the Constitution of India, challenging Section 4(b) of the Sick Industrial Companies (Special Provision) Repeal Act, 2003 alleging inter alia that the provisions of the Insolvency & Bankruptcy Code, 2016 („Code‟ for short) do not provide for an efficacious remedy for implementing the directions of the Supreme Court in order dated 13th November, 2014 reported as Ghanshyam Sarda v. Shiv Shankar Trading Company (2015) 1 SCC (298) and order dated 18th November, 2016 passed in Contempt Petition (Civil) No.338/2014. Another prayer made in the writ petition is for passing appropriate orders W.P. (C) No. 5890/2018 Page 18 of 43 or directing the Union of India to remove difficulties and provide for a remedy for implementation of the said orders. Yet another prayer made, is for appointment of a court Receiver.
2. During the course of the hearing, learned Senior counsels for the petitioner and the respondents took us through the provisions of the Code. We need not go into the various factual and legal aspects raised, for the counsels are ad idem and have reached a consensus on the ambit and scope of power of the National Company Law Tribunal (NCLT) under the Code.
3. Learned counsels agree that the workmen of M/s J.K. Jute Mills Company Limited/Respondent No. 3 would be „operational creditors‟ as defined in Section 5 (20) of the Code. It is also agreed that they are entitled to invoke the jurisdiction of the NCLT under Sections 6, 8 and 9 of the Code.
4. On the question of the powers of NCLT, learned counsels for the parties agree and accept that Sections 47 and 49 of the Code, which relate to under-valued transactions, are not etched and seized by a fixed limitation period as to the transactions which can be looked into and examined. The said Sections can be invoked when the conditions stipulated therein are otherwise satisfied.
5. The orders passed by the Supreme Court in Ghanshyam Sarda (supra) in paras 37 to 39 had issued certain directions to the BIFR including:
To satisfy itself and determine whether the net worth of the company had turned positive or not and upon satisfaction either way, the BIFR was to either de-register the company or consider the scheme for revival of the company. This exercise was to be completed within two months.W.P. (C) No. 5890/2018 Page 19 of 43
The transfer of Katihar property without express leave or permission of the BIFR was held to be questionable but since the transferee was not before the Supreme Court, the appropriate assessment of the same was to be done by the BIFR. As part of this exercise, BIFR was to consider and assess whether there was any necessity and expedience to sell the property in question and after examining the whole matrix of the sale consideration for the said transaction, the appropriate directions were to be passed as contained in para 38.
Apart from this, in the order on the contempt proceedings dated 18th November 2016, the Supreme Court had made observations.
6. This Court is of the opinion that the directions given by the Supreme Court could be examined and considered under Sections 47 and 49 of the Code, if other conditions for invoking these provisions are otherwise satisfied. Both these provisions are not, in any manner, restricted in their application by any limitation period of either one year or two years from the `insolvency commencement date'. The directions as given in Ghanshyam Sarda (supra) can be examined and undertaken by the NCLT under the Code.
7. In view of our above observations and the consensus on the ambit and power of the NCLT under the Code, learned Senior counsel for the petitioner submits that the workmen would invoke the jurisdiction of the NCLT under Sections 6, 8 and 9 of the Code and would move applications under Sections 47 and 49 of the Code for appropriate relief and directions before the NCLT. It is obvious that the application so filed would be dealt with in accordance with the provisions of the Code.
8. It will be open to the workmen to allege and assert that there has been a violation of the orders passed by the Supreme Court and by this Court, as well as violation of W.P. (C) No. 5890/2018 Page 20 of 43 the restraint orders passed by the Board for Industrial and Financial Reconstruction („BIFR‟) under Section 22A of the Sick Industrial Companies (Special Provisions) Act, 1985. Third respondent and others can contest the said submissions.
9. We may note that the learned Senior counsel for the petitioner and the respondent No. 6 have alleged that the respondent No. 3-company has violated the aforementioned orders. Contention of the respondent No. 3 is that they have not violated any orders. Respondent No. 7, on the other hand, states that he is a bonafide purchaser for good value. We clarify that we have not expressed any opinion on the said aspect and leave the question open.
10. Whether or not there was/is any violation, and the effect thereof and the consequences following therefrom, would be examined by the NCLT. While dealing with the aforesaid situation, the NCLT would examine the directions given and findings recorded in the order passed by the Supreme Court dated 13th November, 2014 reported as (2015) 1 SCC 298. The workmen and the respondents would be entitled to refer to the subsequent order passed by the Supreme Court in the contempt proceedings dated 18th November, 2016.
11. We would clarify that, in case there is any violation of the orders passed by this Court dated 16th June, 2017, 6th July 2017 and 21st August 2017 in the present writ petition, it will be open to the petitioner to file contempt proceedings.
12. In view of the aforesaid position, learned Senior counsel for the petitioner does not press his prayer challenging vires of Section 4 (b) of the Sick Industrial Companies (Special Provisions) Repeal Act, 2003 as modified by the Code. He further submits that the question as to whether Trade Unions can invoke the W.P. (C) No. 5890/2018 Page 21 of 43 jurisdiction of NCLT under the Code is subjudice before the Supreme Court and they would abide by the decision of the Supreme Court. This statement is without prejudice to the rights and contentions of the petitioner-trade union to challenge the vires of the Code, if so advised, for it is submitted that the trade unions have been wrongly denied the right to invoke the jurisdiction of the NCLT under the Code.
13. We direct that the interim orders passed on 16th June, 2017, 6th July, 2017 and 21st August, 2017 would continue and would be in operation for a further period of 2 months from today so as to enable the workmen to approach the NCLT. It will be, thereafter, for the NCLT to decide whether or not to continue with the said interim orders and / or to modify, amend or vacate the same.
14. Similarly in case there is violation of the directions given in the order dated 26th May, 2017, by which it was directed that the Company would keep Rs.2.5 crores in reserve, it will be open to the petitioner to invoke contempt jurisdiction and also for the workmen to highlight the said fact before the NCLT.
15. With the aforesaid observations, the writ petition and all pending applications are disposed of without any order as to costs."
12. Immediately after the order dated 6th December, 2017 was passed relegating the workers to proceed in terms of the IBC, the third respondent instituted two civil suits on 12th December, 2017 and 15th December, 2017 before the Civil Judge, Kanpur against about 3000 workmen and ex- workmen. The prayer in the first suit against the workers was to injunct them from representing their dues in various forums till the suit is decided; W.P. (C) No. 5890/2018 Page 22 of 43 declare any document submitted in the DRS before the BIFR by any third party as null and void; declare that no amount was due and payable, if any, to any of the workmen impleaded; award damages, etc. Similar though not identical prayers have been made in the suit against the ex-workers.
13. Pursuant to the order dated 6th December, 2017, some of the workers of the third respondent had approached National Company Law Tribunal, Allahabad (NCLT, for short) under Section 9 of the IBC. By order dated 4 th July, 2018, their application was dismissed on the ground that the third respondent had already filed the civil suit in Kanpur and had sought various declarations. The civil suit had been preferred by the third respondent before notice of demand under Section 8 of the IBC was issued. As long as a dispute truly exists in fact and was not spurious, hypothetical or illusory, the adjudicating authority, i.e., NCLT was to reject the application made by the workers as operational creditors. The order states that the third respondent had paid the gratuity amount, as awarded by the labour court. It is stated that an appeal preferred by the workers against this order before the National Company Law Appellate Tribunal ('NCLAT', for short) is pending.
14. The petitioner before us had also moved to the NCLT under Sections 47 and 49 of the IBC, which applications were dismissed by the NCLT, W.P. (C) No. 5890/2018 Page 23 of 43 Allahabad Bench vide order dated 9th April, 2018 recording that the applications were not maintainable as liquidation proceedings were not pending against the third respondent. The applications under the provisions would be maintainable only after process of liquidation starts after failure of the resolution process.
15. It is in these circumstances that the petitioner has approached this Court with the aforesaid prayers. Upon hearing counsel for the petitioner and the third respondent in particular, vide order dated 5 th July, 2018, the following directions in the form of interim order were passed:-
"Learned Senior Counsel for the petitioner states that the National Company Law Tribunal („NCLT‟) has heard arguments on the petitions/applications filed by workmen under the Insolvency and Bankruptcy Code, 2016 („Code‟) on several issues, including maintainability, after order dated 6.12.2017 passed by this Court in WP(C) No.440/2017, J.K. Jute Mill Mazdoor Ekta Union v. UOI & Ors.
The petitioner herein had approached the NCLT under the Code, albeit application was rejected vide order dated 9.4.2018. Petitioner submits that that he cannot be left remediless, as the grievance or lis must be examined, either by the NCLT or Court in a writ petition as proceedings under Sick Industrial Companies (Special Provisions) Act, 1985 have abated. The petitioner also submits that interim order passed by this High Court in WP(C) No.440/2017, which was extended vide order dated 6.12.2017 for a period of two months, to enable the W.P. (C) No. 5890/2018 Page 24 of 43 workmen to approach the NCLT, is no longer in operation.
Issue notice. We clarify that issue of notice would not, in any manner, be treated as an expression of opinion or finding with regard to the proceedings pending before the NCLT, in which order has been reserved.
On the question of stay, learned counsel for the petitioner has submitted that the interim order passed in WP(C) No.440/2017 should be extended till the next date of hearing.
Learned counsel appearing for respondent No.3, M/s J.K. Jute Mills Company Ltd., now known as Geo Jute Ltd., has submitted that the Supreme Court has passed a restraint order in an appeal against the order passed by the NCLT. She states that the said respondent would abide by and comply with the restraint order passed by the Supreme Court.
Senior Counsel for the petitioner submits that interim restraint order passed by the Supreme Court, and it is accepted, relates to the assets of the third respondent, whereas the restraint order(s) passed by this High Court in WP(C) No.440/2017 were applicable to respondent Nos.4, 9 and 10, which are separate companies. Counsel for respondent No. 3 states that this writ petition has been filed by the petitioner at the behest of the 7th respondent. 7th respondent and petitioner have denied the allegation.
As we have issued notice, we are inclined, at this stage, to restore the interim orders dated 16.6.2017, 6.7.2017 and 21.8.2017 in WP(C) No.440/2017. Restoration of interim order is only till the next date of hearing, when, upon consideration of reply/rejoinder being filed, the Court could vacate, modify, amend or affirm the said orders.W.P. (C) No. 5890/2018 Page 25 of 43
Notice will be served on unrepresented respondents, on steps being taken within 7 days. Reply may be filed within four weeks. Rejoinder, if any, may be filed within four weeks, after reply is served.
We would also clarify that if there is any change in position after the order dated 6.12.2017 was passed and the present order, it will be open to the respondents to file an application/or state so in the reply, pointing out the said change.
Learned counsel for the third respondent has submitted that the petitioner should have filed an appeal under Section 61 of the Code, challenging the order of the NCLT.
Learned counsel for the petitioner states that the petitioner accepts the order passed by the NCLT and, therefore, is not inclined to file an appeal. We would examine this aspect.
We would also clarify that this order will not prevent or bar the NCLT from pronouncing orders in the pending matters.
Relist on 16.10.2018.
Dasti."
The aforesaid order and the order dated 6th December, 2017 disposing of WP(C)No.440/2017 took notice of the proceedings initiated by M/s J.K. Jute Mills Mazdoor Morcha, another Trade Union, before the NCLT under the IBC in respect of the dues payable to the workmen. The trade union, it was held, cannot invoke the provisions of the IBC. The order W.P. (C) No. 5890/2018 Page 26 of 43 was upheld by the NCLAT. The Union has thereupon preferred Special Leave to Appeal, which has been granted and is registered as Civil Appeal No. 20978/2017. In this appeal the Supreme Court has by order dated 5th January, 2018 has directed the third respondent to maintain status quo as to the assets of the said company. This order does not operate against the subsidiaries.
16. Two more aspects are highlighted by the petitioner and the Union - M/s J.K. Jute Mills Mazdoor Ekta Union, the eighth respondent before us. The lease deed between the third respondent and the ninth respondent regarding the property at Kanpur, it is submitted, is in fact and virtually a sale deed, as it transfers 5 acres of land alongwith factory sheds and godowns for the lease period from 4th May, 2017 to 3rd May, 2044 on average annual rent of Rs.9,93,000/-. Further, there is a stipulation in the registered lease deed that the respondent No. 9 can at any time during the pendency of the agreement but not later on expiry of ten years from the date of commencement of the agreement, exercise option to buy the demised premises for Rs.11 crores. The second aspect highlighted by the petitioner and the Union is that the third respondent and its subsidiary have not accounted for the sale consideration received on transfer of the Gulab Bagh W.P. (C) No. 5890/2018 Page 27 of 43 property to the tenth respondent. Our attention was drawn to the affidavit filed by the third respondent, quoted in the order dated 16th June, 2017 passed in Writ Petition (C) No. 440/2017, to the effect that payment for Gulab Bagh, Bihar property shall be made to the subsidiary, i.e., M/s JKJM Housing Private Limited and not to the third respondent. Our attention is also drawn to affidavit filed by S.K. Jha on behalf of the third respondent dated 29th June, 2017, which records that the third respondent would not get any amount from the sale of the godown at Gulab Bagh, Bihar as per the enclosed sale deeds. The Union to contradict this assertion had drawn our attention to the sale deeds dated 5th May, 2017, which record that payment of sale consideration of Rs.2,85,47,400/- had been made by way of five cheques to the seller. The sale deeds were executed by the third respondent.
17. The third respondent who had preferred Special Leave Petition challenging order dated 5th July, 2018 and was directed by the Supreme Court to file counter affidavit to the present writ petition within one week from 10th September, 2018. On 29th September, 2018 the third respondent filed a short counter-affidavit, which affidavit does not deal with several contentions and is not parawise. In this affidavit the preliminary objection raised is that the writ-petitioner should have approached NCLAT to W.P. (C) No. 5890/2018 Page 28 of 43 challenge the order dated 3rd August, 2018 passed by the NCLT. Reference is made to pronouncements of this Court upholding constitutional validity on some of the provisions of the IBC in the factual matrix of the said cases. It is asserted that the net worth of the third respondent is positive and proceedings under SIC Act have abated. The petitioner, it is alleged, has filed the present litigation at the behest of Ghanshyam Sarda, respondent no.7 before us. In other words, this is a proxy or back door litigation. During the course of arguments it was stated that the petitioner has an unsubstantiated claim of Rs.10.0 lakhs. He has no locus to file this writ petition with the aforessaid prayers. On the question of sale and transfer of assets by the third respondent or its subsidiaries, no specific details and particulars have been stated in the counter-affidavit. It is stated that the third respondent company in exercise of right of corporate governance and operations had transferred its assets. The sale/transfer would be valid in the absence of any restraint order.
18. During the course of hearing before us, counsel for the third and tenth respondents have stated at the Bar that the sale consideration for the Gulab Bagh property has to be paid to the subsidiary and not to the third respondent.
W.P. (C) No. 5890/2018 Page 29 of 43
19. In rejoinder-affidavit filed by the petitioner, he asserts and states that he has accepted the order dated 9th April, 2018 passed by the NCLT. In fact, the third respondent has opposed the petition preferred by the petitioner and hence the third respondent has taken contrary plea in the short counter- affidavit.
20. Contesting the submissions of the third and fourth respondents predicated on the order of the Supreme Court dated 18th November, 2016 it was submitted by the petitioner and the Union that the order was passed in contempt proceedings gave benefit of doubt to the fourth respondent, while the third respondent was held to be guilty. Issue raised and subject matter of enquiry in terms of paragraph 38 of the order dated 13th November, 2014 stands and has to be examined. Cancellation of sale deed for violation of the restraint order of the court, and enquiry mandated as per paragraph 38 of the order dated 13th November, 2014 stand on a different footing. Contempt jurisdiction was relating to wilful disobedience of the order of the Supreme Court, whereas direction given in the order dated 13th November, 2014 covers other aspects including misstatement of sale consideration.
21. Third and fourth respondents contest this submission and state that once proceedings under SIC Act have abated, directions given in paragraph W.P. (C) No. 5890/2018 Page 30 of 43 38 would not survive for adjudication. In case of doubt or difficulty, the party aggrieved should approach the Supreme Court. In alternative, it is submitted that the second order of the Supreme Court dated 18 th November, 2016 had taken all the aspects and issues into consideration and thereupon punished the third respondent company and its officers/servants for contempt, but did not deem it appropriate to cancel the sale deed issued in favour of the fourth respondent. The fourth respondent, who has appeared before us, submits that the proceedings against them stand closed once the Supreme Court had closed the contempt proceedings.
22. The factual position, as it emerges, is that the third respondent was declared as a sick company under SIC Act on 16th December, 1994. The proceedings under SIC Act had remained pending till 1 st December, 2016 when they abated pursuant to enactment and enforcement of the Repeal Act. The BIFR till then had not adjudicated and decided whether or not net worth of the third respondent had turned positive and accordingly it should be de- registered under SIC Act. The BIFR had also not decided the controversy and issue in terms of paragraph 38 of the order passed by the Supreme Court dated 13th November, 2014 reported as 2015 (1) SSC 298. Pertinently vide order dated 18th November, 2016 reported as 2017 (1) SSC 599, the W.P. (C) No. 5890/2018 Page 31 of 43 Supreme Court had held that the third respondent and its Officers/Directors had violated and disobeyed interim order passed on 8th May, 2013 when they had sold the Katihar property vide sale deed registered on 2 nd July, 2013. The third respondent and its Directors/ Officers were held to be guilty of contempt and had to pay fine/penalty of Rs.2,000/-. The third respondent has also transferred immovable properties located in Kanpur, Gulab Bagh, Garh Bandeli and Forebisganj in favour of five subsidiaries who have been impleaded as respondent Nos.11 to 15. No cash consideration has been paid by the subsidiaries for the transfers, albeit shares in the subsidiary have been allotted to the third respondent. Land and property which originally belonged to the third respondent at Gulab Bagh has been sold and transferred to M/s Kurina Real Estate Private Limited, the tenth respondent. As per the petitioner and the eighth respondent, JK Jute Mill Mazdoor Ekta Union and eleven applicants seeking impleadment vide application CM No. 43730/2018, the transactions are dubious and details of the sale consideration received are not forthcoming. The third respondent, M/s JK Jute Mills Company Limited, has entered into a long lease agreement with ninth respondent M/s Skyscrappers Niwas Private Limited, with the said respondent's right to purchase the property.
W.P. (C) No. 5890/2018 Page 32 of 43
23. Consequent to abatement of proceedings before the BIFR, the Union i.e. M/s. J.K. Jute Mills Mazdoor Ekta Union had filed W.P. (C) No.440/2017 in this Court wherein interim orders were passed restraining the third respondent and its subsidiaries from transferring, alienating, encumbering or creating any third party rights in any of the assets without leave of the Court. Direction was also given to ensure that the third respondent would reserve an amount of Rs.2.5 crores being claimed by the workmen. The aforesaid writ petition was disposed of vide order dated 6 th December, 2017, relegating the workers to invoke proceedings under the IBC. However, it was directed that the interim orders passed would remain in operation for a further period of two months from the said date to enable the workmen to approach the NCLT, who would then decide whether or not to continue with the said interim orders and/or to modify, amend or vacate the same. Immediately after the order dated 6th December, 2017, the third respondent had filed two suits on 12th and 15th December, 2017 against 3000 existing and erstwhile workmen to injunct them from representing their alleged dues in various forums; to declare the documents submitted in DRS as null and void and to hold that that no amount was payable to workmen/ex-workmen. The respondent No.3 has declared lock out in the W.P. (C) No. 5890/2018 Page 33 of 43 factory and the validity of the said declaration etc. is subjudice before the Allahabad High Court. M/s. J.K. Jute Mills Mazdoor Morcha, another trade union had filed proceedings under Section 9 of the IBC, which application/petition has been dismissed as not maintainable by a trade union by the NCLT and NCLAT. Leave to appeal against the said decision has been granted and Civil Appeal No.20978/2017 is pending before the Supreme Court. The Supreme Court has also directed that status quo in respect of the assets of the third respondent would be maintained. The petitioner had also approached NCLT by way of an application under Section 47 and 49 of the IBC seeking relief to investigate and cancel illegal transaction in terms of the order of the Supreme Court dated 13 th November, 2014. This application has been dismissed by the NCLT as not maintainable vide order dated 9th April, 2018. This order, however, also records that the directions given by the High Court in their order dated 6 th December, 2017 would remain intact and the respondent company would have to keep Rs.2.5 crores in reserve. The Union claims that an amount of Rs.128 crores would be due and payable to the workmen and ex-workmen.
24. The DRS pending before the BIFR, it is stated by the petitioner and the Union, had acknowledged that Rs.23.06 crores was payable to the W.P. (C) No. 5890/2018 Page 34 of 43 workmen as gratuity and Rs.3.97 crores was payable on account of deposits. The wages etc. had not been quantified. The counter-affidavit filed by the third respondent on the question of dues of workmen is silent. On being questioned, counsel for the third respondent had stated that the aforesaid amounts were mentioned in DRS filed by a third person and not by the present management of the third respondent, who had submitted another DRS. However, counsel for the third respondent was not forthcoming and had stated that she was not in a position to answer and state whether in the DRS submitted by the present management, they had admitted and accepted the amounts due to the workmen.
25. The core controversy, which is required to be resolved and settled, relates to the claim of the workmen and ex-workmen of the third respondent. The aspect and issue of affect of the order dated 18 th November, 2016 on the order dated 13th November, 2014 and on merits would possibly arise and survive for consideration if the primary or core issue - whether and if any amount is due and payable by the third respondent to the workmen/ ex- workmen is examined and decided. Another aspect would relate to the forum / court that should decide this lis/ dispute. Yet another aspect relates to the person(s) entitled to raise the lis/ dispute regarding the Katihar W.P. (C) No. 5890/2018 Page 35 of 43 property. Some of the workmen pursuant to order dated 6 th December, 2017, passed in W.P. (C) No.440/2017 have approached NCLT under the IBC but their petitions have not been accepted and are pending or the applications made have been rejected. The third respondent, it is apparent, relies upon the two civil suits filed by them against 3000 workmen and ex- workmen before the Civil Judge, Kanpur on 12th and 15th December, 2017. On being questioned, counsel for the third respondent did not give candid answer on whether the workmen or ex-workmen would be operational creditors under the IBC. An ambiguous stand was taken that workmen or ex- workmen could be classified as operational creditors provided and subject to their claims being genuine. The question whether the workers‟ Union can raise the claim of the ex-workmen/workmen as operational creditors under the IBC is pending before the Supreme Court as NCLT and NCLAT have both rejected their locus. It is, therefore, clear to us that the issue of workers' dues etc. have to be examined in an appropriate forum. As per the third respondent, this claim should be examined by the Labour Court/Tribunal. Even if we accept the statement to be correct (indeed this could be a viable solution), interim order against transfer of immovable and capital assets till W.P. (C) No. 5890/2018 Page 36 of 43 adjudication is made may be required and necessary to protect interest of the workmen/ex-workmen.
26. On being questioned, why the capital assets and immoveable properties of the third respondent was transferred, the candid and frank answer of the counsel for the third respondent was that the transfers were authorized by the management and there were no stay or interim orders in operation on the dates when transfers were made. Given these facts, we have to express our concern for the ex-workmen/workmen, whose claims have not been decided and adjudicated upon. It is in this context that the order passed by the Supreme Court on 13 th November, 2014 and the directions given therein assume importance, for if the ex-workmen/workmen have not been paid their dues, the transfer made by the third respondent to the fourth respondent vide sale deed registered on 2nd July, 2014 would require scrutiny and examination. Of course, any answer would require consideration of the findings recorded in the contempt proceedings vide order dated 18th November, 2016.
27. Thus, even if the ex-workmen/workmen or the Labour Union initiate proceedings under the Industrial Disputes Act, interim protection may be required and necessary against sale, transfer and creation of third party W.P. (C) No. 5890/2018 Page 37 of 43 interest in respect of the capital assets and immoveable properties. The Supreme Court has already granted stay of alienation and creation of third party interest of capital assets belonging to and owned by the third respondent. However, the third respondent has already transferred most of its assets to its subsidiaries and hence, protection and restraint orders are required against the subsidiaries.
28. The statute, be it the Companies Act or the IBC, does give primacy to the claims of ex-workmen/workmen. There is urgency and need for determining and deciding the claim and issues raised by ex- workmen/workmen given the fact that the third respondent has transferred and alienated capital assets and immoveable properties to third persons and subsidiary companies, which in turn have again transferred their assets to third persons. There are allegations that true and full transfer considerations have not been recorded and accounted for in the books. The allegation is denied, albeit this issue and contention has to be examined and decided on merits to form a firm and final opinion. This adjudication is to be made in proceedings in accordance with law etc. At present, the question of locus and appropriate jurisdiction/forum having jurisdiction is pending consideration before the Supreme Court, in this writ petition, before the W.P. (C) No. 5890/2018 Page 38 of 43 NCLT and also before NCLAT. Perhaps an authoritative pronouncement would be made in Civil Appeal No. 20978/2017 filed by M/s JK Jute Mills Mazdoor Morcha pending before the Supreme Court.
29. The third respondent has raised allegations against the petitioner that he is fighting a proxy and backdoor litigation on behalf of Ghanshyam Sarda, the seventh respondent. Another issue raised relates to the locus of the petitioner to raise the claim/prayer for and on behalf of other workers or ex-workers. In fact, the petitioner has not pleaded and filed this writ petition in the representative capacity. M/s. J.K. Jute Mills Mazdoor Ekta Union has been impleaded as respondent No.8, who had earlier filed W.P.(C) No. 440/2017, has filed an application for cancellation of under valuation of sale transactions dated 5th May, 2017 and 8th May, 2017. This Union has not filed a writ petition though the stay order passed on 6th December, 2017 in WP(c) No.440/2016 was not extended, possibly in view of the order dated 6th December, 2017 passed in W.P.(C) No.440/2017. It will be debatable and doubtful whether the petitioner would be entitled to raise the issue regarding of Katihar property in terms of the directions given by the Supreme Court, as the petitioner was not a party to the said proceedings. As noticed the issue and question before us relating to dues of the workers/ex- W.P. (C) No. 5890/2018 Page 39 of 43 workers raised by M/s JK Jute Mills Mazdoor Morcha is pending before the Supreme Court in Civil Appeal No.20978/2017, wherein interim order has been passed against the third respondent. Thus, the third respondent contends that multiple proceedings have been initiated and are pending before the Supreme Court, NCLAT, NCLT as well as this court. In addition, we have two civil suits filed by the third respondent against the workers/ex- workers and a writ petition before the Allahabad High Court on the question of lockout. Counsel for the petitioner and Union submit that multiplicity of proceedings as there is lack of clarity on the forum that can adjudicate is being used as ground to delay and complicate matters. In the process properties of the third respondent have been transferred and alienated. The workers/ex-workers would be left without remedy and would not be able to enforce their claims and recover the amounts due.
30. Given the aforesaid position, learned Senior Advocate appearing for the petitioner on instructions had stated that the petitioner may be permitted to withdraw the present writ petition so as to approach the Supreme Court. However, the interim order passed by this Court should be continued and extended for a period of three weeks to enable the petitioner and others to seek appropriate orders. Counsel for the eighth respondent i.e. the Union has W.P. (C) No. 5890/2018 Page 40 of 43 stated that they would examine and take appropriate action as may be required and necessary to protect the interest of the workmen / ex-workers including approaching the Supreme Court in Civil Appeal No.20978/2017.
31. One of the reasons why we have narrated the aforesaid facts and given the background is that the learned Senior counsel appearing for the third respondent had stated that they cannot agree to extension of stay in terms of the statement made by the counsel for the petitioner. However, learned Senior Advocate appearing for the fourth respondent had stated that they have no intention of transferring or alienating the Katihar property at present and without prejudice to their rights and contentions, being the bona fide purchasers for which they rely upon order dated 18 th November, 2016, passed in the contempt proceedings by the Supreme Court, they would not sell, alienate or transfer the Katihar property for a period of 21 days from 2nd November, 2018. Learned counsel appearing for the ninth and tenth respondents, namely, M/s. Skyscrappers Niwas Pvt. Ltd. and M/s. Kurina Real Estate Pvt. Ltd., on instructions, has made a similar statement that they would not transfer, sell, alienate or create any third party rights in respect of the properties acquired from the subsidiaries or the third respondent for a period of 21 days from 2nd November, 2018. The aforesaid statements on W.P. (C) No. 5890/2018 Page 41 of 43 behalf of the petitioner, respondent Nos.4, 9 and 10 made without prejudice to the rights and contentions are taken on record. They would be read as part and parcel of the present order.
32. The writ petition is disposed of in view of the statement made by the counsel for the petitioner, who seeks permission to withdraw the present writ petition with liberty to approach the Supreme Court. In the meanwhile, the statements made by the counsel for the respondent Nos.4, 9 and 10 would continue to operate and apply. These respondents would abide by the statements made for a period of twenty one (21) days from 2nd November, 2018. We are also inclined to extend the stay order restraining the subsidiaries of the third respondent from alienating, transferring or creating third party interests in respect of the capital assets for a period of 21 days from 2nd November, 2018. It is also open to the eighth respondent to avail of remedies in accordance with law. If such proceedings are initiated and all pending proceedings would be dealt with in accordance with law, notwithstanding any observation and finding recorded in the present order. The third respondent, subsidiaries-respondent Nos.11 to 15, respondent Nos.4, 9 and 10 would equally be entitled to defend or initiate proceedings notwithstanding the present order and the observations recorded therein. Of W.P. (C) No. 5890/2018 Page 42 of 43 course, the third respondent is bound by the stay order passed by the Supreme Court. All pending applications including application for impleadment are disposed of. Recording the above, the present writ petition is disposed of without any order as to costs.
(SANJIV KHANNA) JUDGE (CHANDER SHEKHAR) JUDGE NOVEMBER 12th, 2018 VKR/ssn W.P. (C) No. 5890/2018 Page 43 of 43