Calcutta High Court
Gourepore Company Limited ( In Liqn.) vs Carnation Distributors Pvt. Ltd on 9 August, 2017
Author: Sanjib Banerjee
Bench: Sanjib Banerjee, Siddhartha Chattopadhyay
OD-2 & 3
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
ORIGINAL SIDE
APO No. 160 of 2017
ACO No. 37 of 2017
in
CA No. 107 of 2016
CP No. 355 of 1997
OCO No. 6 of 2017
IN THE MATTER OF:
GOUREPORE COMPANY LIMITED ( IN LIQN.)
AND
CARNATION DISTRIBUTORS PVT. LTD
Versus
THE OFFICIAL LIQUIDATOR & ANR.
AND
ACO No. 11 of 2015
in
APO No. 264 of 2017
CP No. 355 of 1997
DOLPHIN VINTRADE PVT. LTD. & ANR.
Versus
THE OFFICIAL LIQUIDATOR & ANR.
BEFORE:
The Hon'ble JUSTICE SANJIB BANERJEE
AND The Hon'ble JUSTICE SIDDHARTHA CHATTOPADHYAY Date : 9th August, 2017.
Appearance:
Ms. Manju Agarwal, Adv.
Mr. Bajrang Manot, Adv.
Mr. Abrhojit Mitra, Sr. Adv.
Mr. Jishnu Chowdhury, Adv.
Mr. Aritra Basu, Adv.2
Mr. S. K. Kundu, Adv.
Mr. Debasish Kundu, Sr. Adv.
Mr. Subhransu Ganguly, Adv.
Mr. Shiv Chandra Prasad, Adv.
Mr. Debrup Bhattacharjee, Adv.
Mr. P. K. Tulsyan, Adv.
Ms. Ruma Sikdar, Adv.
The Court : The order impugned is so completely without jurisdiction that it is liable to be set aside for the mere asking.
An assignee of the debts of one or more secured creditors sought to convene a meeting of a few creditors of the company (in liquidation) without even indicating the values of the debts of such creditors. The application was filed without reference to the parent matter and even the order that was passed does not carry any reference to the parent matter. A provision of law was invoked without such provision, obviously, being looked into as it did not either authorise the making of the application thereunder or the passing of any order in respect thereof.
Section 391 of the Companies Act, 1956 permits a compromise or arrangement to be proposed between a company and its creditors or a class of creditors or between a company and its members or a class of members on the application of the company, or any creditor or member of the company. However, "in the case of a company which is being wound up", Section 391(1) of the Act permits only an application "of the liquidator" to be received under such provision.
In this case, the application was not filed by the liquidator. Indeed, the official liquidator may not have been referred to in course of the adjudication of the 3 matter and the order impugned does not refer to the official liquidator or even to the representation on behalf of the official liquidator.
More alarmingly, meetings of creditors were directed to be convened without the lists of creditors being settled and without reference to the official liquidator in such regard. At meetings of creditors, the votes of the creditors are ascertained according to the values of their debts. No debt of any creditor was indicated in the application nor did the order make any provision for the ascertainment of the debts of the creditors whose meetings had been convened by such order.
Applications for meetings to be held of creditors of a company (in liquidation) ought to be seen with a lot more circumspection than is evident from the order impugned. In the scheme of things that existed prior to the Companies Act, 2013 and as is still applicable to the company (in liquidation), this Court is in seisin of the company (in liquidation) and its assets and properties and is answerable to all its creditors. A bystander or a passerby cannot be allowed to hijack the assets of the company (in liquidation) by convening an illegal meeting. The Court has to guard against such mala fide attempts as the present one and the Court is duty-bound to do so. Since the very application carried to the company Court, without any reference to a company petition number, was under a provision that does not authorise the making or the receipt of such application, CA No.107 of 2016 is dismissed with costs assessed at Rs.1 lakh for such irresponsible application. The applicant in CA No.107 of 2016, whether by itself or through any agent or otherwise, shall not obtain orders similar to those sought in CA No.107 of 2016 without this order being specifically brought to the notice of the Court or forum where such orders may be sought. 4
The order impugned dated December 5, 2016 stands set aside. All steps taken pursuant to such order are illegal and of no effect and shall not be given effect to in any manner or form.
APO No.160 of 2017, ACO No.37 of 2017, OCO No.6 of 2017, ACO No.11 of 2015 and APO No.264 of 2017 are disposed of as above.
(SANJIB BANERJEE, J.) (SIDDHARTHA CHATTOPADHYAY, J.) bp.