Karnataka High Court
Dr Kirtivan D Kotian vs Mohan Singh on 25 April, 2013
Author: Ram Mohan Reddy
Bench: Ram Mohan Reddy
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 25TH DAY OF APRIL 2013
BEFORE
THE HON'BLE MR.JUSTICE RAM MOHAN REDDY
C.A.Nos.326/2013, 327/2013 & 507/2013
In COMPANY PETITION No.56/2008
CA.Nos.326 & 327/2013 :
BETWEEN:
Applicant (Proposed Respondent No.2)
Dr.Kirtivan D. Kotian
Flat BG Magnolia Apartments
No.16, 13th Cross, Adipampa Road,
Mysore-570002. .. Applicant
(common in both
Applications)
( By Sri Ajesh Kumar, Advocate for
DSK Legal)
AND:
1. Mohan Singh,
Proprietor, M/s.Mohan Engineering
Having its office at
No.610, Opposite Government Hospital,
Hunsur Main Road,
Yelwal, Mysore-571130.
2. Official Liquidator of
S.Manikya Plastichem Private Limited,
In Liquidation,
2
No.12, Raheja Tower, M.G.Road,
Bangalore-560001
At Plot No.5, Belavadi
Industrial Area, Hunsur Road,
Mysore-570018. .. Respondents
(common in both
Applications)
( By Sri Saji P. John, Advocate for R-1 and
Sri K.S.Mahadevan, V.Jayaram, Advocates
For Official Liquidator)
C.A.No.326/2013 is filed under Section 151 of
C.P.C. r/w. Rule 6 and 9 of the Company Court Rules
praying to recall its order dated 18.12.2008 and dismiss
the Petition in COP No.56/2008.
C.A.No.327/2013 is filed under Order 1 Rule 10 of
C.P.C. r/w. Rule 6 and 9 of the Company Court Rules,
1959, praying to permit the applicant herein to be
impleaded as the Respondent No.2 in the Company
Petition No.56/2008.
CA.No.507/2013 :
BETWEEN:
Applicant (Proposed Respondent No.2)
Dr.Kirtivan D. Kotian
Flat BG Magnolia Apartments
No.16, 13th Cross,
Adipampa Road,
Mysore-570002. .. Applicant
( By Sri Ajesh Kumar, Advocate for
DSK Legal)
3
AND:
1. Mohan Singh,
Proprietor, M/s.Mohan Engineering
Having its office at
No.610, Opposite Government Hospital,
Hunsur Main Road,
Yelwal, Mysore-571130.
2. S.Manikya Plastichem Private Limited,
Formerly known as S Lon Manekya
Plastichem Private Limited
A Company incorporated under the
Provisions of Companies Act, 1956
And having its registered office
At Plot No.5, Belavadi
Industrial Area, Hunsur Road,
Mysore-570018. .. Respondents
( By Sri Saji P. John, Advocate for R-1 )
C.A.No.507/2013 is filed under Section 5 of the
Limitation Act, 1963 r/w. Section 151 of C.P.C. praying
to condone the delay of 1505 days in filing of the
Application in CA 326/2013.
These Applications are coming on for Orders this
day, the Court made the following :
ORDER
The first application is to recall the order dated 18.12.2008 in COP.No.56/2008 directing winding up of M/s.S.Manikya Plastichem Pvt. Ltd., a company, while the second to implead the applicant as 4 respondent No.2 in COP.No.56/2008, and the third to condone the delay of 1505 days in filing the first application.
2. The applicant asserts that along with his brother and father owned not less than 95% shares in the company and were in control of its affairs. During the year 2006 it is said, the company took a loan of Rs.9 Crores from State Bank of India for expansion of business. According to the applicant, substantial portion of the shares held by the applicant and his family members were taken over at Zero cost with an understanding that the entire assets and liabilities of the company are taken over by Sri.S.N.Ladhani, a resident of Bangalore and therefore, the shareholding was diluted to less than 2% while the remaining shares were held by Sri.S.N.Ladhani and his nominess/investors. In addition, it is stated that State Bank of India extended an additional loan of Rs.2 Crores against the security of the company's 5 assets during the year 2007 and when Sri.S.N.Ladhani and his nominess/investors proposed to manage the company, the Bank accepted their guarantee and thereby by the act of Novation, the guarantee extended by the applicant stood dissolved. It is further stated that Sri.S.N.Ladhani was the Director of the respondent-Company between the period from September 1999 to December 2008, whence the share holding of the applicant along with members of family was reduced to 1.24% and the remaining 98.76% shares were held by the said Sri.S.N.Ladhani and his investors. In addition, it is stated that one Mohan Singh petitioned this Court in Company Petition No.18/2008 for recovery of Rs.2,47,671/-, a "paltry sum", which when admitted, the petition was allowed and the company was directed to be wound up. The applicant states that the Bank instituted O.A.No.212/2009 before the Debt Recovery Tribunal, Bangalore on 29.8.2009 without 6 arraigning as a party defendant the said Sri.S.N.Ladhani and his nominees/investors.
3. It is said that this Court having put up for auction sale the land and building belonging to the company (in liquidation), one Shivaswamy offered the highest bid, while another auction purchaser came forward to pay Rs.4.10 Crores and the said matter is subject matter of OSA.No.13/2011 though the market value of the land is Rs.11 Crores. On 9.8.2011, it is stated, the Bank issued a notice under Section 13 of the Securitisation Act and commenced proceedings to sell a residential flat owned by this applicant and his brother and his sister and another plot of land for recovery of the amounts due, which is under challenge in I.R.No.2904/2012. At paragraph-25 of the affidavit it is stated that the applicant's education has been entirely or mostly in America and after he gave up all the share-holding in the respondent company and move abroad, has since been out of the 7 country. It is further stated that efforts have been made by the applicant to meet the General Manager of the Bank to bring about a negotiated settlement and to discharge him from the guarantee. It is in these circumstances that the applicant has filed the application to recall the order of winding up of the company.
4. In the application for impleading the applicant has largely reiterated the very same statements made in the application for recalling the order of winding up to contend that he is a proper and necessary party to the company petition.
5. In the last application over condonation of delay, it is stated that during 1979-1987 the applicant has been a resident of America and in 1987 he returned to India and was associated with the respondent company, and thereafterwards, since August 2005 has been residing at Colombo, Srilanka. 8 Having become aware of the proceedings of the company petition as well as the proceedings before the Debt Recovery Tribunal, initiated by the Creditor Bank and on advise of learned counsel, has preferred the applications.
6. All though learned counsel for the applicant makes reference to several reported opinion of this Court and that of the Apex Court in support of the applications, none of the opinions apply in the fact situation. Suffice it to mention that the applicant having spelt out in unmistakable terms that he is not a share holder of the company (in liquidation), the applications are without merits and are accordingly rejected.
Sd/-
JUDGE *bk/-