Chattisgarh High Court
Jagdish Singh Saini & Ors vs M/S G. P. Ispat Private Limited & Ors on 19 October, 2016
Author: Prashant Kumar Mishra
Bench: Prashant Kumar Mishra
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Order Reserved on 04.05.2016
Order passed on 19.10.2016
COMP No. 5 of 2013
1. Shri Sarabjeet Singh Chhatwal S/o Surendra Singh
Chhatwal , Main Road, Tulsi Marg (Korba), Distt. Korba C.G.
2. Karamjeet Singh & Company Ltd. Through- Its Director Shri
Karamjeet Singh, Office At F-5, Shradha House, Kingsway,
Nagpur-440001
---- Petitioner
Versus
1. G.P. Ispat Private Limited having its Registered Office at
Plot No. 688-693, Urla Industrial Growth Center, Raipur,
C.G.-492001
2. Gurpreet Singh Chandhok, S/o Pritpal Singh Chandhok,
Pritpal Farm House, VIP Road, Near Hotel Babylone, Raipur
C.G.
3. Smt. Gurvinder Kaur Chandhok W/o Pritpal Singh
Chandhok R/o Pritpal Farm House, VIP Road, Near Hotel
Babylone, Raipur C.G.
4. Registrar Of Companies III Floor, A-Block, Sanjay Complex,
Jayendraganj, Gwalior, Madhya Pradesh
---- Respondent
And MA No. 62 Of 2015
1. Jagdish Singh Saini (wrongly mentioned as Jadish Singh Saini) S/o Shri Trilok Singh Saini Aged About 61 Years R/o HIG-10, Tatibandh, Raipur, P.S. Telibandha, Raipur, District Raipur Chhattisgarh
2. Charanjeet Singh Saini S/o Jagdish Singh Saini Aged About 35 Years R/o HIG-10, Tatibandh, Raipur P.S. Telibandha, Raipur, District Raipur Chhattisarh
3. Sunny Saini S/o Jagdish Singh Saini Aged About 30 Years R/o HIG-10, Tatibandh, Raipur P.S. Telibandha, Raipur, District Raipur Chhattisgarh 2
---- Petitioner Vs
1. M/s G.P. Ispat Private Limited Through Its Director A Company Incorporated Under The Provisions Of The Companies Act 1956, Plot No. 688-693, Urla Industrial Growth Centre, Raipur Chhattisgarh 492001
2. Shri Pritpal Singh Chandhok S/o Shri Harbans Singh, Pritpal Farm House, VIP Road, Raipur Chhattisgarh 492015
3. Shri Gurpreet Singh Chandhok S/o Shri Pritpal Singh Chandhok, Pritpal Farm House, VIP Road, Raipur Chhattisgarh 492015
4. Shri Dinesh Kumar Shukla S/o Shri Ram Prakash Shukla LIG 853, MPHB, Tatibandh, Raipur Chhattisgarh 492009
5. State Bank Of India SME Branch Premises, Byron Bazar, Raipur, Chhattisgarh 492001
6. Shri Amarpreet Singh Chandok S/o Shri Pritpal Singh Chandhok S/o Shri Harbans Singh Pritpal Farm House, VIP Road, Raipur Chhattisgarh
---- Respondent For Petitioner Mr. Neelabh Dubey and Mr. Ankit Singhal, Advocates For Respondent /Company Mr. Prashant Kumar, Advocate For Respondent/SBI Mr. Abhishek Sinha, Advocate Hon'ble Shri Justice Prashant Kumar Mishra Company Petition No.5 of 2013 IA No.02
1. This is an application for impleadment of State Bank of India as party/respondent No.5 in Company Petition No.5 of 2013.
2. For the reasons mentioned in the application and having considered the facts situation of the case, the application (IA No.2) is allowed.
3
3. Necessary amendment be incorporated in the original cause title of the Company Petition within a period of two weeks.
4. After incorporation of the amendment, issue notice to the newly added respondent/State Bank of India.
5. Since the respondent/SBI is represented by Mr. Abhishek Sinha, Advocate, process fee need not be paid.
6. The parties were heard on the question of continuation of the interim order.
7. Company Petition No.05 of 2013 has been preferred by the creditor against the respondent Company for its winding up in terms of Section 433 (e) of the Companies Act, 1956 (for short "the Act, 1956") on the avernments that the respondent Company had obtained unsecured loan of Rs.1.00 crore from the petitioner No.1 without any interest and Rs.1.50 crores with interest from the petitioner No.2. Thereafter, the petitioner No.1 advanced financial assistance to the respondent Company to the tune of Rs.50.00 lacs on 05.10.2012 and another amount of Rs.50.00 lacs on 08.10.2012. Further sum of Rs.75.00 lacs each was granted twice by the petitioner No.2 on 10.10.2012 and on 11.10.2012 to the respondent Company with interest. At the time of filing of this company petition, the company is in debt of Rs.2,57,61,178/- which has not been paid to the petitioners despite service of statutory notice. 4
8. On 02.07.2013, this Court restrained the respondent Company from alienating, transferring or eliminating any of its assets till the next date of hearing and the said interim order is continuing.
9. It is argued by the learned counsel appearing for the respondent/SBI that the interim order was granted in favour of the petitioners without impleading the SBI.
10. Learned counsel would further submit that the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short "the Act, 2002") have an overriding effect over other laws, therefore, in the garb of restraining the Company from alienating or eliminating the secured assets of the Company, the securitisation proceedings have been stayed, which is not permissible in law.
11. Per contra, learned counsel appearing for the petitioners, would pray for continuation of the interim order on the ground that if the possession of the secured assets are transferred to the Bank, the petitioners may not be able to realize their debt.
12. The issue as to whether the Company Court can interfere with the proceedings under the Act, 2002 has been succinctly dealt with by the Supreme Court in the matter of Pegasus Assets Reconstruction Private Limited v. 5 Haryana Concast Limited and another1, wherein, it has been held that because of clear intention of the Parliament expressed in Section 13 of the Act, 2002 that a secured creditor is entitled to protect its interest without the intervention of the Court or Tribunal, the Company Court is not entitled to interfere either directly or indirectly in the proceedings under the Act, 2002 either by the Company Judge or by the Liquidator.
13. In the case at hand, the respondent-Company owes more than Rs.55.00 crores to the SBI. As compared to this, the unsecured loan advanced by the petitioners to the respondent Company is a small amount. For such small amount, the proceedings under the Act, 2002 need not be interfered or stayed either directly or indirectly in this Company Petition. Even otherwise, since the SBI has already been impleaded as respondent in this Company Petition, it shall be bound by any final order passed in this Company Petition.
14. In view of the above and particularly considering the judgment rendered by the Supreme Court in Pegasus Assets Reconstruction Private Limited (supra), the interim order dated 02.07.2013 is vacated subject, however, to the observation that in the event the winding up petition is allowed and if the SBI succeeds in conducting the auction 1 (2016) 4 SCC 47 6 sale of the secured assets of the respondent Company to realize its debt, the sale proceed obtained therefrom will remain subject to the outcome of this company petition to the extent of the sum involved in this petition.
15. In view of the above, IA No.04 stands disposed of.
16. Post this company petition on 16th November, 2016. MA No.62/2015
17. Post this appeal along with Company Petition No.5 of 2013.
Sd/-
Company Judge Prashant Kumar Mishra Gowri