Kotak Mahindra Bank Ltd vs Managing Director M/S Balram Cements ... on 10 March, 2014

[Cites 3, Cited by 2]

Gujarat High Court

Kotak Mahindra Bank Ltd vs Managing Director M/S Balram Cements ... on 10 March, 2014

Bench: Anant S. Dave

           O/OJMCA/66/2011                                           ORDER




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                  MISC. CIVIL APPLICATION NO. 66 of 2011
                                          In
                     COMPANY PETITION NO. 234 of 2001

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           KOTAK MAHINDRA BANK LTD....Applicant(s)
                          Versus
MANAGING DIRECTOR M/S BALRAM CEMENTS LTD & 5....Respondent(s)
================================================================
Appearance:
MR NAVIN K PAHWA, ADVOCATE for the Applicant(s) No. 1
MR BHARAT JANI, ADVOCATE for the Respondent(s) No. 4
MR DHARMESH V SHAH, ADVOCATE for the Respondent(s) No. 6
MR GM JOSHI, ADVOCATE for the Respondent(s) No. 5
MR SUDHIR M MEHTA, ADVOCATE for the Respondent(s) No. 1
MS SHAILEE S MEHTA, ADVOCATE for the Respondent(s) No. 1
================================================================

          CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE

                                 Date : 10/03/2014


                                  ORAL ORDER

1. The applicant is a Banking Company having its registered office at the address shown in the cause title and is an assignee of ICICI Bank Ltd and has taken over the debt due and payable by the respondent company under a Deed of Assignment dated 29.09.2004.

2. This application is preferred to recall the judgment and order dated 10.10.2006 passed in Company Petition No.234 of 2001 by this Court in view of reference made in the judgment and order dated 10.10.2006 to the statement made on behalf of the respondent as also on behalf of IDBI and IFCI that dues of these two institutions are settled.

Page 1 of 3

O/OJMCA/66/2011 ORDER According to Mr.Navin Pahwa, learned advocate for the applicant, certain events have taken place and narration is produced in para 7 of this application and upon consideration of the events, it is clear that this Court was pleased to consider the opinion of the Board for Industrial and Financial Reconstruction (for short, 'the BIFR') to wind up the respondent company, the respondent company had settled the dues of IDBI and IFCI and even before the BIFR, IDBI has till recently in terms stated that it is no longer a secured creditor, and in fact, requested to be exempted for future hearing. It is the case of the applicant that after having colluded with the respondent company, IDBI as also the respondent company have informed the BIFR that dues of IDBI as also IFCI are not fully settled and they are still the secured creditors in respect of the debts of the respondent company. The above stand of IDBI as well as IFCI and steps taken by the applicant under the SARFAESI Act, the respondent company has taken completely contrary stand in collusion with IDBI, and thus, abusing process of Court and making it impossible for the applicant company to recover the dues. Now, Miscellaneous Application No.67 is filed before BIFR intimating that in view of the applicant has taken measures under Section 13(4) of the SARFAESI Act, the proceedings of reference would abate by virtue of provisions of third proviso to Section 15(1) of The Sick Industrial Companies (Special Provisions) Act, 1985 (for short, 'the SICA'). The BIFR passed an order dated 10.02.2010 recording that in view of pendency of proceedings before the Hon'ble Supreme Court with regard to substitution, it is not appropriate to pass any other order on the said application and the appeal was filed before AAIFR which came to be registered as Appeal No.116 of 2010, and later on, by an order dated 19.05.2010, the said appeal came to be dismissed. Against which, Special Civil Application No.12400 of 2010 was filed before this Court, in which, some other proceedings were taken up and an order dated Page 2 of 3 O/OJMCA/66/2011 ORDER 23.11.2010 was passed by this Court.

3. Shri Navin Pahwa, learned advocate for the applicant submits that if the order passed is not recalled, it will not be in the interest of the applicant/original respondent when respondent is still incurring losses. It is submitted that in view of certain incorrect and wrong statements, the above order was passed about payment of dues which was, in fact, not paid. It is also submitted that though the applicant has filed separate application for winding up of the respondent company wherein the applicant has demonstrated the respondent company continues to be commercially insolvent, and, therefore, it is just and equitable that the respondent company is wound up.

4. In appreciation of submissions made by learned advocate for the applicant and record of the case, including subsequent events which have taken place before the BIFR and AAIFR, are not sufficient enough to recall the order and I do not deem it just and proper to recall the order dated 10.10.2006 passed in Company Petition No.234 of 2001 as prayed for, and this Miscellaneous Civil Application is disposed of accordingly. However, this order will not come in the way of the pending proceedings between the parties before this Court or any other forum.

(ANANT S.DAVE, J.) chandresh Page 3 of 3

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