Calcutta High Court
Mining And Allied Machinery ... vs National Building Construction ... on 3 September, 2008
Author: Patherya
Bench: Patherya
CA No. 502 of 2008
With
CA No.331 of 2002
CA No.644 of 2005
IN THE HIGH COURT AT CALCUTTA
Original Jurisdiction
IN THE MATTER OF :
MINING AND ALLIED MACHINERY CORPORATION LIMITED (IN
LIQN.)
AND
NATIONAL BUILDING CONSTRUCTION CORPORATION LIMITED
VS.
OFFICIAL LIQUIDATOR
For Petitioner : Mr. Susanta Dutta, Adv.
For Official Liquidator : Mr. M. C. Ghosh with Ms. Mithua
Sen, Advs.
BEFORE:
The Hon'ble JUSTICE PATHERYA
Date : 3rd September, 2008.
The Court : This is an application for granting permission to the applicant to continue with the arbitration proceedings in PMA against the company (in liquidation). The case of the petitioner is that by order dated 5th March, 2007 the matter was referred to the High Power Committee. Such High Power Committee has taken a decision on 13th May, 2008 and granted continuation of the arbitration proceedings subject to permission of this Court. Hence the instant application has been filed.
Counsel for the Official Liquidator submits that by order dated 5th March, 2007 it has been accepted that the Official Liquidator is to represent the company (in liquidation). Before taking a decision notice ought to have been served upon the 2 Official Liquidator. In fact the order dated 13th May, 2008 has been passed without any notice to the Official Liquidator. Therefore, the Official Liquidator has been denied hearing and no order be passed on this application.
Having considered the submissions of the parties and although it is recorded by the High Power Committee in its order dated 13th May, 2008 that both parties were heard, nowhere in the order has the submission of the representative of the Official Liquidator or the Official Liquidator or the company (in liquidation) been recorded. Therefore, without giving an opportunity of hearing to the Official Liquidator or the company (in liquidation) the order dated 13th May, 2008 has been passed. In the absence of giving a hearing to the Official Liquidator there has been violation of the principles of natural justice and the order dated 13th May, 2008 cannot be sustained and is accordingly set aside. It would, however, be open to the High Power Committee to take a decision after giving an hearing to the parties including the Official Liquidator.
In view of the aforesaid this application is disposed of.
As no affidavit-in-opposition has been filed, the allegation contained in the petition is not admitted. 3
All parties concerned are to act on a xerox signed copy of this order on the usual undertakings.
( PATHERYA, J. ) pa