Delhi High Court - Orders
M/S Royal Marine Co & Others vs Naftogaz India Private Ltd on 27 September, 2023
Author: Prathiba M. Singh
Bench: Prathiba M. Singh
$~C12
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CO.PET. 128/2011 and CO.APPL. 642/2013, 683/2013, 1376/2013,
2100/2013, 2423/2014, 589/2016, 1995/2016, 2207/2016, 657/2017,
724/2017, 773/2017, 934/2017, 1266/2017, 334/2018, 853/2018,
1144/2019, 83/2020, 188/2020, 445/2020, 527/2020, 528/2020,
609/2020, 719/2020, 91/2021, 20/2023, 168/2023, OLR 313/2019
M/S ROYAL MARINE CO & OTHERS ..... Petitioners
Through: Mr. Shlok Chandra, Ms. Priya Sarkar,
Ms. Madhavi Shukla, Ms. Vanshika
Taneja and Mr. Saksham Jain, Advs.
for ITD. (M: 9999670588)
versus
NAFTOGAZ INDIA PRIVATE LTD ..... Respondent
Through: Mr. Akhil. P. Chhabra and Mr. Ritu
Chhabra, Adv. for Applicant. (M:
9810428362)
Mr. Sanjeev Kumar Dubey, Sr. Adv.
with Mr. Asif Inam Advocate, Ms.
Shazia Sameen, Advs. for Applicant
(M: 9773876193)
Mr. T. P. Singh, Sr. Central Govt.
Counsel. (M: 9971529687) UOI-
ALC.
Mr. V N Koura, Mrs. Paramjeet
Benipal, Mr. Nirbhay Narain Singh,
Advs. for IOCL (M: 9650610540)
Mr. Vinayak Batta, Adv. for BORL.
(M: 9873980084)
Mr. Shivam Takkar and Mr. Sarthak
Sehgal, Advs. for Applicant (M:
9999665140)
Mr. Sanidhya Kumar, Adv. for
Applicant bank in CA; 1144/2019 &
83/2020. Also for non-
applicant/respondent in CA;
168/2023. (M: 9910909028)
Mr. Siddharth Khattar, Adv. for Ex-
CO.PET. 128/2011 Page 1 of 8
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above.
The Order is downloaded from the DHC Server on 28/09/2023 at 21:40:55
Management. (M:8800912360)
Mr. Kunal Sharma & Mr. Subhendu
Bhattacharya, Advs. for OL. (M:
80540 44818)
CORAM:
JUSTICE PRATHIBA M. SINGH
ORDER
% 26.09.2023
1. This hearing has been done through hybrid mode.
CO. APP. 934/20172. This is an application moved by the Applicant- M/s VRC Constructions (India) Private Limited seeking the release of the amounts due to it. According to Mr. Dubey, ld. Senior Counsel for the Applicant the amount of Rs.19.5 crore was payable to his client. However, out of the said amount, Rs.2.76 crore have already been received and, thus, as per OLR 313/2019, the sum of Rs.16.74 crore is payable to the Applicant.
3. The OL's report also records that 50% of the amount is liable to be paid to the Applicant. Pursuant to this OLR, order dated 9th January, 2020 was passed by this Court directing disbursement of 50% of the amount i.e., Rs.8.37 crores to the Applicant within the period of two weeks from today. The relevant extract of the said order reads as under:
"OLR 31312019 Mr. Dubey has drawn the attention of this Court to paragraph 13 of the present OLR, which reads as under: -
That the ex-director, Sh. Mahdoom Bawa, during the meeting dated 14.11.2019, stated that the entire work was not completed by the Applicant in CA. 934 of 201 7, and that the CO.PET. 128/2011 Page 2 of 8 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 28/09/2023 at 21:40:55 work had to be done by some other contractor. However, it is stated that the details of the said sub-contractor, who allegedly carried out the balance work was not provided. It is stated that this Hon 'ble Court, vide order dated 01.03.2013, passed in the captioned petition, had permitted a sub-contractor of the Company-in-Liqn., at the Panipat project, under the supervision of the Official Liquidator. However, no details have been provided as to whether the said work, permitted to be carried out by the said sub-contractor, is the same work that the Applicant in CA. 934 of 2017 allegedly did not complete. The Applicant in CA. 934 of 2017 has contended that it has carried out the entire work, the same was opposed by the ex-management, for which the supporting bills raised by the Applicant in CA. 934 of 2017, as well as the other subcontractor would have to be examined, however, in the meanwhile, it is submitted that 50% of the amount due to the Applicant in CA. 934 of 2017 be released and balance can be paid after giving an opportunity to the ex-
management to show as to what portion of the work awarded to the applicant was not done by it.
Mr. Dubey submits that in the meeting convened jointly in the office of IOCL at Panipat, pursuant to the order of this Court, the Official Liquidator has agreed to disburse 50% of the amount due to the applicant in CA 934/2017.
As per paragraph 12 of the OLR, it is averred that an amount of Rs. 19.50 crores was payable to the CO.PET. 128/2011 Page 3 of 8 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 28/09/2023 at 21:40:56 applicant by IOCL. The applicant has been paid an amount of Rs. 2.76 crores leaving the balance amount of Rs. 16.74 crores.
Let the Official Liquidator disburse 50% of the said amount i.e. Rs. 8.37 crores to the applicant within a period of two weeks from today."
4. The release of the amount is sought by the Applicant. However, the same is opposed by the OL's counsel, Mr. Kunal Sharma, on the ground that in order dated 25th March, 2022, this Court had, prima facie, given an observation that no relief can be granted to the Applicant in CA 934/2017. However, at this stage, he does not oppose the release of the amount. The relevant extracts of order dated 25th March, 2022 is extracted as under:
1. Mr. Dubey, learned senior counsel appearing for the applicant states that the applicant is entitled to certain funds for the work done in executing the Contract for IOCL. He states that since the respondent company was in financial difficulty, IOCL had issued a Letter of Comfort to the applicant whereby, it has agreed to make certain payments for the work done by the applicant directly to the applicant notwithstanding that IOCL had a contract with the respondent company.
2. Insofar as the petitioner's claim for work under the said Letter of Comfort is concerned, that is a matter between the applicant and IOCL. IOCL has deposited certain funds with the Official Liquidator subject to its right of making adjustments to the sub-contractors. In the event, IOCL seeks refunds of the amounts deposited with the Official Liquidator on account of certain dues payable to the sub-contractors, that question would be examined at that appropriate stage. Prima facie, this Court is unable to accept that any relief can be granted directly to the applicant. Needless to say, that if the applicant claims to be a creditor of the respondent company, it has a right to make a claim as CO.PET. 128/2011 Page 4 of 8 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 28/09/2023 at 21:40:56 and when the claims are invited. At this stage, Mr. Dubey, learned senior counsel states that it would be apposite if IOCL is also represented before this Court.
3. In view of the above, the further hearing of the present application is deferred.
5. After hearing submissions for more than half an hour in this application, the Court is constrained to observe that there is a clear log-jam in the manner in which the present case is being dealt with especially at the OL's office. IOCL has deposited a substantial sum of more than Rs. 25 crores and except one payment which has been released to a sub-contractor in terms of one of the orders, not even a single workman has been paid. Ld. Counsel for the OL takes contradictory stands during the course of submissions. Ld. Counsel for the ex-management opposes the application and the release of the amount on the ground that the said Applicant had not executed the work at all, which had led to another agency, i.e., M/s AB Petro Services Private Limited being engaged and payments being made to them. It is noticed that no objections have been filed by the ex-management in this application which was filed way back in the year 2017 and today objections have been raised, that too only in oral submissions.
6. However, considering the fact that the Company in liquidation and the amount that is to be released to the Applicant is substantial, in the interest of justice, the ex-management is permitted to file reply to this application within one week, failing which the right to file reply shall be closed.
7. In the factual matrix of this case, where there has been considerable delay in the adjudication of this application, primarily due to the inconsistent stand of the OL, it is directly that the OL shall pay a sum of Rs.25,000/- as costs to the Applicant within one week for the delay being caused in the CO.PET. 128/2011 Page 5 of 8 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 28/09/2023 at 21:40:56 adjudication of this application. In order to ensure that no further confusion is created in this matter, a sum of Rs.8.37crore shall now be deposited by the OL with the Registrar General and shall be kept in a separate fixed deposit on auto-renewal mode. The amount in the said fixed deposit shall be subject to the outcome of this application, i.e., CO APP. 934/2017.
CO. APPLs. 527/20208. This is an application filed by M/s Mansarovar Infra Tech Private Ltd. bringing to the notice of this Court that despite the order dated 30 th May, 2019, directing the OL to take expeditious steps for disposal of assets of the Respondent company, the claims of the Applicant are not being adjudicated by the OL and the claims are not even being considered. It is submitted by the ld. Counsel for the Applicant that the reply has also not been filed to the present application.
9. Initially, Mr. Sharma, ld. Counsel for OL informed the Court that the fund position of this Company is more than Rs.25 crores. However, at the time when the order is being dictated, he informs the Court that the fund position is Rs.16 crore.
10. In any event, claims of all the creditors ought to be adjudicated by the OL including the claims of this Applicant. The claims which have been filed as Annexure 5 to this application shall now be considered by the OL. If any clarification is required, the OL is free to contact the ld. Counsel for the Applicant. Let the claim be processed and the adjudication be done within four weeks.
11. Application is disposed of.
CO.PET. 128/2011 Page 6 of 8This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 28/09/2023 at 21:40:56 CO APPLs. 642/2013, 683/2013 & 91/2021
12. These applications are in respect of dues from Bharat Oman Refineries Ltd. which is now stated to have merged with the Bharat Petroleum Ltd. (BPCL), to the company in liquidation. Ld. counsel for the ex-management who is the Applicant in these three applications submits that a substantial sum of Rs. 143 crores is due from this company, i.e, Bharat Oman Refineries Ltd. (now part of BPCL). A perusal of the reply in CO APPL. 642/2013 would reveal that the stand of BPCL is that there was a huge delay in the completion of the project by the Applicant i.e., the ex- management, the said two paragraphs are extracted below:
"10. That it is humbly submitted that there was a huge delay in the completion of the project by the Respondent / Applicant where the time was the essence of the contract, which amounts to breach of contract on the part of Respondent/Applicant.
11. That the project of the Non-Applicant/BORL has been completed and production of petroleum products in the Refinery was started on 30/6/2011 as such now there is no balance work to be carried out by the Respondent/Applicant and Respondent /Applicant is trying to mislead this Hon'ble Court."
13. A perusal of the above two paragraphs would show that the project itself has been completed and there is no balance works to be carried out in view thereof, the amounts to be paid by the company to the company in liquidation are to be determined.
14. Let a meeting be held on 17th October, 2023 at 11:00 a.m. before the OL. This meeting shall be presided over by Ms. Meenakshi, the OL herself. On the said date, the ex-management shall also present. After reconciliation CO.PET. 128/2011 Page 7 of 8 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 28/09/2023 at 21:40:56 of the accounts takes place, the OL shall place a report on record qua these three applications by 30th November 2023.
15. The officials who appear both on behalf of the company and the ex- management shall be those who are well-versed in respect of the project in question.
16. List on 16th January, 2024.
CO.PET. 128/2011 and 1376/2013, 2100/2013, 2423/2014, 589/2016, 1995/2016, 2207/2016, 724/2017, 773/2017, 1266/2017, 334/2018, 853/2018, 1144/2019, 83/2020, 188/2020, 445/2020, 528/2020, 609/2020, 719/2020, 20/2023, 168/2023, OLR 313/2019
17. List on 16th January, 2024.
PRATHIBA M. SINGH, J SEPTEMBER 26, 2023 dj/am CO.PET. 128/2011 Page 8 of 8 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 28/09/2023 at 21:40:56