Bangalore District Court
Baifour Aviation Limited vs Kingfisher Airlines Limited on 11 November, 2024
1 Ex.P.No.195/2014
KABC010134432014
IN THE COURT OF THE LXIII ADDL.CITY CIVIL &
SESSIONS JUDGE (CCH-64) AT BENGALURU
Dated this the 11th day of November, 2024
: PRESENT :
Sri. I. P. Naik
LXIII ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY.
Ex.P.No.195/2014
Petitioners : Balfour Aviation Limited
A Company incorporated under the
laws of the Republic of Ireland,
having its principal office at 4th
floor, Block 2, West Pier Business
Centre, Dun Laoghaire, Co.Dublin,
Ireland
Represented by its Authorised
representative
Mr.Michael Bhimenthal
(Decree holder No.1)
2. Wingate Aviation Limited
A Company incorporated under
the laws of the Republic of
Ireland, having its principal office
at 4th floor, Block 2, West Pier
Business Centre, Dun Laoghaire,
Co.Dublin, Ireland
Represented by its Authorised
representative
2 Ex.P.No.195/2014
Mr.Michael Bhimenthal
(Decree holder No.2)
(By Sri. MS- Advocate)
-V/s-
Respondent : 1. Kingfisher Airlines Limited
A Company Registered under the Companies Act, 1956, Having its office at UB ower, Level 12, UB city, 24, Vittal Mallya Road, Bangalore-560 001 Rep. by its Director
2. United Breweries (Holdings ) Limited A Company Registered under the Companies Act, 1956, 24, Vittal Mallya Road, Bangalore-560 001 Rep by its Director.
ORDERS ON MEMO The deputy official liquidator of High Court of Karnataka has filed memo stating that, Hon'ble High Court of Karnataka ordered to be wound-up the Jdr No.1 vide orders passed in Company Petition No. 214/2012 Dtd 18.11.2016. As per said order property, assets of the company are deemed to be 3 Ex.P.No.195/2014 under custody of Hon'ble High Court of Karnataka. Further, in pursuant directions of Hon'ble High Court passed in OLR No 70/2019 claims were invited from workmen and creditors by publishing public notice in "The Hindu" English news paper and Vijaya Karnataka Kannada news paper on 26.07.2019, but Dhr has made any claims before official liquidator. In view of orders of Hon'ble High Court of Karnataka no suit or legal proceedings shall be commenced or if pending as date of winding up order, shall be proceeded with conditions of orders of Hon'ble High Court of Karnataka. Hence, prays for dismiss the present execution petition.
2. The learned Counsel for Dhr has resisted the memo filed by official liquidator by filing written objections, wherein he contented that, this petition filed for recovery of Rs 09,30,50,816:16/-. All Jdr are jointly and severally liable to pay aforesaid amount. An appointment of official liquidator is not attained finality. Therefore, memo not entitled to be consideration. The Dhr Company is based in Ireland and not aware of official liquidation proceedings before Hon'ble High Court of Karnataka. Advertisement of Notice released on 30.09.2020 in 4 Ex.P.No.195/2014 Newspapers in Times of India, The Hindu and Vijaya Karnataka, now Dhr is in a position to take necessary action to approach the official liquidator or the competent authority. Hence, prays for reject the memo.
3. Heard, both side.
4. The following points arise for my consideration-
(1) Whether Dhr have proceed with this execution petition after appointment of official liquidator and without leave of Hon'ble High Court of Karnataka?
(2) What orders?
5. On considering memo, objections and hearing of both parties my answer to above points as under;
POINT No.1 : In the negative.
POINT No.2 : As per final orders
---------for following 5 Ex.P.No.195/2014 REASONS
6. POINT No.1:-
An official liquidator urged that, Hon'ble High Court of Karntaka has appointed Deputy Officer liquidator for the purpose of wound-up the Jdr company by passing order in Company Petition No. 214/2012 on 18.11.2016. Dhr are requires to approach official liquidator for their claim. Therefore, prays for dismiss this petition.
7. As against this, learned Counsel for Dhr submitted that, these Dhr are question and challenged the appointment of official liquidator before Hon'ble Division Bench High Court of Karnataka. If Dhr succeeded in said appeal, Dhr has got right enforce decree passed by Hon'ble High Court of Justice, Queen's Bench Division, Commercial Court, Royal Courts of Justice, United Kingdom. If this Court comes to conclusion this Execution Petition is not maintainable, prays for provide opportunity to proceed against Jdr by filing fresh petition for recovery of dues from them.
8. On considering submission of both rival parties I have perused the material on records. Dhr No.1 and 2 6 Ex.P.No.195/2014 have filed claim No 2011/Folio 1334 on 09.11.2011 before Hon'ble High Court of Justice, Queen's Bench Division, Commercial Court, Royal Courts of Justice, United Kingdom. On 23.03.2012 awarded decree in favour of Dhr. The Jdr No 1 and 2 are liable pay amount of 09,24,15,359.42/-. The Deputy official liquidator has been appointed Hon'ble High Court of Karnataka in Company Petition No. 214/2012 on 18.11.2016. No order regarding said appointment of official liquidator is set aside.
9. At this stage, this Court has relied on Sec 446 of Companies Act, 1956 Sec 446 - Suits stayed on winding up order.
(1) When a winding up order has been made or the Official Liquidator has been appointed as provisional liquidator, no suit or other legal proceeding shall be commenced, or if pending at the date of the winding up order, shall be proceeded with, against the company, except by leave of the Court and subject to such terms as the Court may impose. (2) The Court which is winding up the company shall, notwithstanding anything contained in any other law for the time being in force, have jurisdiction to entertain, or dispose of
(a) any suit or proceeding by or against the company ;7 Ex.P.No.195/2014
(b) any claim made by or against the company (including claims by or against any of its branches in India) ;
(c) any application made under section 391 by or in respect of the company ;
(d) any question of priorities or any other question whatsoever, whether of law or fact, which may relate to or arise in course of the winding up of the company ;
whether such suit or proceeding has been instituted, or is instituted, or such claim or question has arisen or arises or such application has been made or is made before or after the order for the winding up of the company, or before or after the commencement of the Companies (Amendment) Act, 1960 (65 of 1960).
(3) Any suit or proceeding by or against the company which is pending in any Court other than that in which the winding up of the company is proceeding may, notwithstanding anything contained in any other law for the time being in force, be transferred to and disposed of by that Court.
(4) Nothing in sub-section (1) or sub-section (3) shall apply to any proceeding pending in appeal before the Supreme Court or a High Court In view of aforesaid provision of statute, Dhrs are being creditors of Jdr. Before proceed to this execution petition, Dhrs have seeking leave from Hon'ble High Court of Karnataka. No such leave 8 Ex.P.No.195/2014 obtained by Dhr. In objections, Dhr submitted that, they have not aver about proceedings of Company petition No 214/2012 held before Hon'ble High Court of Karnataka. In memo official liquidator stated his appointment and called creditors or claimants can approach before him in respect of their claims by publishing in Newspapers one 'The Hindu' national level paper and another Newspapers Vijaj Karnataka state level paper. Therefore, contentions of Dhr regarding they have no knowledge about proceedings of Company petition No 214/2012 and appointment of official liquidator is not acceptable. The Dhr themselves pleaded that, they will approach to appropriate authority. According, point No.1 answered in the negative.
10. POINT No.2:
For going reasons, proceed to pass following;
ORDERS The memo filed Deputy Official Liquidator is hereby allowed.
The Dhr are hereby directed to approach before proper forum/authority.9 Ex.P.No.195/2014
Further, Dhr are at liberty to proceed with Jdr if they have succeeded in appeal filed by them. Accordingly, this execution petition is disposed off.
(Typed by me on the laptop, print out taken by the stenographer and then pronounced in the open court on this the 11th day of November, 2024) Digitally signed irappanna Sri. I. P. Naik by irappanna LXIII ADDL.CITY CIVILPavadi & SESSIONS Pavadi JUDGE, BENGALURU Naik Date:CITY.
2024.11.12
Naik 17:12:03 +0530
10 Ex.P.No.195/2014
(Order typed vide separate)
ORDERS
The memo filed Deputy
Official Liquidator is hereby
allowed.
The Dhr are hereby directed
to approach before proper
forum/authority.
Further, Dhr are at liberty to
proceed with Jdr if they have
succeeded in appeal filed by them.
Accordingly, this execution
petition is disposed off.
Sri. I. P. Naik
LXIII ACC & SJ
CCH-64, BENGALURU CITY.
11 Ex.P.No.195/2014