Gujarat High Court
Official Liquidator Of M/S Mardia ... vs Mr. Rasiklal S. Mardia on 30 March, 2022
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
C/OLR/78/2019 ORDER DATED: 30/03/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/OFFICIAL LIQUDATOR REPORT NO. 78 of 2019
In R/COMPANY APPLICATION NO. 390 of 2016
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OFFICIAL LIQUIDATOR OF M/S MARDIA CHEMICALS LTD. (IN LIQN)
Versus
MR. RASIKLAL S. MARDIA
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Appearance:
MS KJ BRAHMBHATT(202) for the Applicant(s) No. 1
OFFICIAL LIQUIDATOR for the Applicant(s) No. 1
ARPIT R SINGHVI(9524) for the Respondent(s) No. 1
MR SP MAJMUDAR(3456) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 30/03/2022
ORAL ORDER
1. Heard learned Advocate Mr. MS KJ Brahmbhatt for the Official Liquidator and learned Advocate Mr.Arpit Singhvi for learned Advocate Mr. SP Majmudar for the respondent No. 1
2. By this report Official Liquidator prays for following reliefs:-
a) This Hon'ble Court may be pleased to take above facts and compliance report on records.
aa) This Hon'ble Court may be pleased to declare that in view of subsequent opinion dated 03.06.2019 of panel Chartered Accountant M/s. Dalal & Co.
(Chartered Accountant's firm), the opponent Mr. Rasiklal S. Mardia, Ex-promoter and Chairman & Managing Director of M/s. Mardia Chemicals Ltd. (In Liquidation) is not a worker of M/s. Mardia Chemicals Ltd. (In Liquidation) and claim does not fall u/s. 529A of the Companies Act, 1956 and therefore he is not entitled to receive his claim of Rs.35,91,097/- under the Section 529A of the Page 1 of 6 Downloaded on : Sat Dec 24 13:53:55 IST 2022 C/OLR/78/2019 ORDER DATED: 30/03/2022 Companies Act, 1956.
b) In view of above facts and circumstances submitted at above paras, this Hon'ble Court may be pleased to give appropriate direction in the matter, if any.
c) The Hon'ble Court may be pleased to join as party respondent Shri Rasiklal S Maradia, Ex- Promotor and Chairman & Managing Director of M/s. Maradia Chemicals Ltd. (In Liquidation) residing at 183, Manekbaug Society, Ambawadi, Ahmedabad.
d) Any order/orders as may be deem, fit and proper in the matter by this Hon'ble Court may be passed.
3. This Court by order dated 03.08.2005 in Company Application 119 of 2005 and allied matters in Company petition No. 37 of 1998, passed an order to wind up M/s Mardia Chemicals Ltd.
4. Asset Care and Reconstruction Enterprise Ltd. (ACRE) has sold out the assets and properties of the Company situated at Vatava and Mardianagar, District Surendranagar under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short SARFAESI ACT)
5. ACRE deposited Rs.386 lacs with the office of the Official liquidator towards the claim of the workers in the year 2011.
6. Official Liquidator thereafter invited the claim from the workers of the company in liquidation by publishing advertisement in newspapers namely Divya Bhaskar and DNA on Page 2 of 6 Downloaded on : Sat Dec 24 13:53:55 IST 2022 C/OLR/78/2019 ORDER DATED: 30/03/2022 05.09.2012.
7. The Official Liquidator appointed M/s. P.K. Ajmera & Co. Chartered Accountant to verify the claims in the year 2014, however, the claims could not be verified and ultimately in the 2017, the claim of the workers was verified by the M/s. P. Dalal & Co., Chartered Accountant and submitted the report on 11.09.2017 wherein claim of 356 workers was verified and out of which claim of 330 workers for Rs.2,41,62,540/-, was found eligible.
8. This Court by order dated 20.11.2017 passed in Company Application No.390/2016 permitted the Official Liquidator to disburse the payment of 330 workers as per the report of the Chartered Accountant. Official Liquidator made payment to 285 workers/employees of the company in liquidation pursuant to the aforesaid order.
9. The official Liquidator received claim form and undertakings dated 01.12.2018 from Shri Rasiklal Shantilal Mardia, founder, Ex-Chairman and Managing Director of the company in liquidation, which was examined by the Official Liquidator on the basis of the record of the Company.
10. Learned Advocate Ms. Brahmbhatt for the Official Liquidator submitted that the claim of Rs.35,71,097/- as calculated by Chartered Accountant to be paid to the Ex-Chairman, Page 3 of 6 Downloaded on : Sat Dec 24 13:53:55 IST 2022 C/OLR/78/2019 ORDER DATED: 30/03/2022 Managing Director of the company in liquidation cannot be considered as a claim of an ex workman of the company in liquidation as he was actually the promoter and Ex-chairman and Managing Director of the company in liquidation.
11. It was submitted that Chartered Accountant has not submitted any opinion about legal entitlement of claim of Rs.35,71,097/- for Mr. Rasiklal S. Mardia, who was Ex-Chairman of the company in liquidation.
12. It was therefore submitted that the Official Liquidator sought explanation and the Chartered Accountant vide letter dated 03.06.2019 informed that through oversight, claim of Shri Rasiklal S. Maradia was considered as worker of the company in liquidation as he had Provident Fund account. However, in the opinion of the Chartered Accountant Shri Rasiklal Maradia is not a worker of M/s. Maradia Chemicals Ltd. (Company in liquidation) as he has never been paid wages instead he has been given remuneration and no worker is appointed by resolution. It was also opined that Mr. Rasiklal Maradia does not fall within the definition of the 'worker' as per Industrial Disputes Act, 1947.
11. Learned Advocate Ms. Brahmbhatt, therefore, submitted that by bona fide mistake, the Chartered Accountant has quantified the claim of Rs.35,71,097/- of Shri Rashiklal Maradia as Page 4 of 6 Downloaded on : Sat Dec 24 13:53:55 IST 2022 C/OLR/78/2019 ORDER DATED: 30/03/2022 employee of the company in liquidation but in fact he was ex-promoter/owner and Ex-chairman and Managing Director of the Company in Liquidation. It was therefore submitted that repeated requests to release the payment by Mr. Maradia, therefore, cannot be accepted. It was therefore prayed that as per the opinion dated 3rd June, 2019 of the Chartered Accountant, Mr. Maradia is not a worker of the company in liquidation and claim does not fall under Section 529 A of the Companies Act, 1956 and, therefore, he is not entitled to receive claim under Section 529A of the Companies Act, 1956.
12. Learned Advocate Mr. Arpit Singhvi for the respondent submitted that he cannot object with regard to the submissions made by the learned advocate for the Official Liquidator as Ex- Chairman & Ex-Managing Director of the company in liquidation cannot be considered as a workman. However, only prayer which the respondent has made, is with regard to payment of surplus, if any which remains after the disbursement.
13. Considering the above submissions, this report is allowed in terms of the prayers made by the Official Liquidator. It goes without saying that any surplus, if remains after the disbursement, the Official Liquidator is required Page 5 of 6 Downloaded on : Sat Dec 24 13:53:55 IST 2022 C/OLR/78/2019 ORDER DATED: 30/03/2022 to pay the same to the respondent in accordance with provisions of the Companies Act, 1956 read with the Company (Court) Rules, 1959.
With the aforesaid clarifications and directions, this OLR is disposed of.
(BHARGAV D. KARIA, J) MANISH MISHRA Page 6 of 6 Downloaded on : Sat Dec 24 13:53:55 IST 2022