Calcutta High Court
Re: Precision Engineering & ... vs Dadhibal Shaw on 15 May, 2018
Equivalent citations: AIRONLINE 2018 CAL 288
Author: Moushumi Bhattacharya
Bench: Moushumi Bhattacharya
OD-6
ORDER SHEET
CA 109 OF 2018
CP 487 OF 2016
IN THE HIGH COURT AT CALCUTTA
Original Jurisdiction
ORIGINAL SIDE
RE: PRECISION ENGINEERING & FABRICATORS PVT. LTD.
Versus
DADHIBAL SHAW
BEFORE:
The Hon'ble JUSTICE MOUSHUMI BHATTACHARYA
Date : 15th May, 2018.
Appearance Mr. Soumabho Ghose, Adv.
Ms. Riti Basu, Adv.
Mr. Subhadeep Basah, Adv.
...for the applicant Ms. Debjani Mitra, Adv.
...for Official Liquidator The Court : This application has been filed under Section 535 of the Companies Act, 1956 by the owner of a vessel "M.V. Atmosphere Yacht" which is presently in the custody of the Company in liquidation. The vessel was purchased by the applicant from one Marine Solutions Distribution & Services Private Limited on 11th November, 2014 and the certificate of registration was issued on 23rd February, 2015 by the Government of West Bengal to the applicant thereafter recognizing the ownership of the applicant over the said vessel. The applicant has an existing Marine Insurance Policy which has also been annexed to the application. 2
Mr. Soumabho Ghose, learned Counsel, appearing for the applicant submits that the vessel faced technical malfunction and could not be operated, by reason of which the applicant approached to company under liquidation for carrying out necessary repair works. The company in liquidation carried out the required repairs on the basis of work order issued on the company on 14th January, 2018 for the amounts mentioned in the work order and the invoices which were subsequently raised by the company in liquidation on the applicant. The entire amount of Rs. 10,94,520/- for carrying out and completing repair work was paid by the applicant to the company in liquidation. This is not disputed by the Official Liquidator who is present in Court today. The bank's statement annexed to the application also corroborates that this amount was released by the applicant in favour of the company in liquidation.
The Company i.e. Precision Engineering & Fabricators Pvt Ltd was wound up by this Court by an order dated 7th February, 2018. Counsel for the applicant submits that on coming to learn of the said order, it immediately informed the office of the Official Liquidator that the vessel does not belong to the Company in liquidation and is owned by the applicant. From the said letter it is evident that the Official Liquidator was unequivocably informed that the applicant is the owner of the yacht for which certificate of registration was obtained from the Government of West Bengal. The fact of giving the yacht for repairs to the company in liquidation was also brought to the notice of the Official Liquidator together with the fact of the work orders. The Official Liquidator was also informed that the applicant has cleared all payments against the invoices raised by the Company in liquidation within the agreed time period. On the basis of the aforesaid, a request was made by the applicant that since the vessel does not belong to the company in liquidation, it should be released forthwith to the applicant and should not be taken into consideration for ascertaining the liquidation value of the company. The petitioner made the 3 instant application for disclaimer on 12th April, 2018. The Official Liquidator does not have any objection to releasing the yacht, but submits that security guards have been deployed at the cite where the yacht is presently kept and hands over bills raised on the company in liquidation for ensuring security of the vessel.
Since there is no dispute that the yacht belongs to the applicant and further all charges due to the Company in liquidation for carrying out repair work on the vessel has been cleared by the applicant, there is no impediment in granting the prayers, as sought for, by the petitioner. It is also evident that the vessel cannot be utilized by the company in liquidation in terms of the order of winding up passed by this Court.
Although, from the facts it is revealed that there are no existing claims against the applicant, as a measure of abundant caution, the applicant agrees to waive all claims against the Company in liquidation. The application is allowed in terms of prayers (a), (b) and (c) of the Judge's Summons.
CA 109 of 2018 is disposed of with the above directions.
(MOUSHUMI BHATTACHARYA, J.) RS