Gujarat High Court
Khurana Infrastructure And ... vs Official Liquidator Of Mardia ... on 29 September, 2015
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
O/COMA/17/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
COMPANY APPLICATION NO. 17 of 2014
==========================================================
KHURANA INFRASTRUCTURE AND CONTRACTORS PVT.
LTD....Applicant(s)
Versus
OFFICIAL LIQUIDATOR OF MARDIA CHEMICALS PVT. LTD -IN LIQN- &
2....Respondent(s)
==========================================================
Appearance:
MR NL RAMNANI, ADVOCATE for the Applicant(s) No. 1
MR. ANIL B CHIMNANI, ADVOCATE for the Applicant(s) No. 1
MS AMEE YAJNIK, ADVOCATE for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 3
NOTICE SERVED BY DS for the Respondent(s) No. 2
OFFICIAL LIQUIDATOR for the Respondent(s) No. 1
==========================================================
CORAM: HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 29/09/2015
ORAL ORDER
1. The applicant has taken out the judges summons, wherein, he has prayed that the Official Liquidator be directed to pay/release legitimate dues payable to the applicant as per the judgment and decree dated 26.07.2001 with interest and cost.
2. Heard learned advocate Mr.N.L.Ramnani for the applicant and learned advocate Ms.Amee Yajnik for respondent No.1Official Liquidator. Though served, Page 1 of 7 HC-NIC Page 1 of 7 Created On Thu Oct 01 02:06:23 IST 2015 O/COMA/17/2014 ORDER the other respondents have not filed their appearances.
3. Learned advocate Mr.Ramnani appearing for the applicant submitted that the applicant had filed Summary Suit No.5982 of 1998 against M/s. Mardia Chemicals Pvt. Ltd. before the City Civil Court, Ahmedabad, for recovery of an amount of Rs.35,31,697/. In the said summary suit, the City Civil Court, Ahmedabad, passed a judgment and decree on 26.07.2001, whereby, decree was passed in favour of the applicant for an amount of Rs.27,80,864/ alongwith 12% interest from the date of the suit till realization and cost was also imposed. The applicant thereafter filed Execution Proceedings being Darkhast No.617 of 2001. Therefore the said company issued two cheques, both dated 16.01.2002, each amounting to Rs.5 Lacs in the name of Registrar, City Civil Court alongwith letter addressed to the Registrar, City Civil Court. It was also stated in the said communication that the said company has been registered as sick unit with BIFR and therefore the said cheques were not deposited. Thereafter the said Execution Proceedings came to be dismissed for default Page 2 of 7 HC-NIC Page 2 of 7 Created On Thu Oct 01 02:06:23 IST 2015 O/COMA/17/2014 ORDER on 31.12.2011 for want of appearance by the applicant. Therefore, fresh Execution Proceedings being Darkhast No.232 of 2013 has been filed before the said Court, wherein, the applicant has claimed Rs.75,79,545/ with 12% interest from 10.04.2013.
4. Learned advocate Mr.Ramnani thereafter contended that applicant thereafter came to know that M/s.Mardia Chemicals Pvt. Ltd. has been ordered to be wound up by an order dated 06.05.2005 passed by this Court in Company Petition No.338 of 1999. Initially, Provisional Liquidator was appointed and thereafter by order dated 03.08.2005, the Liquidator has been appointed for the said company in liquidation. Thus, when the liquidator is appointed by this Court for the purpose of conducting the process of winding up, this application is filed and the applicant has prayed that direction be given to the Official Liquidator to pay the dues of the applicant as per the judgment and decree passed by the City Civil Court.
5. On the other hand, learned advocate Ms.Yajnik appearing for the Official Liquidator submitted that ICICI Bank Limited as a debenture trustee, has filed Page 3 of 7 HC-NIC Page 3 of 7 Created On Thu Oct 01 02:06:23 IST 2015 O/COMA/17/2014 ORDER Suit No.434 of 2003 in the High Court of Bombay for recovery of the dues. In the said proceedings, the said Bank also preferred notice of motion for interim relief including appointment of Court receiver. The High Court of Bombay allowed the said notice of motion by an order dated 13.08.2004 and appointed the Court receiver with certain directions. Said Bank also filed the application before this Court seeking leave under Section 446 of the Companies Act, 1956 to enable the plaintiff to proceed with the suit. Said application was allowed by this Court. Thereafter Notice of Motion No.360 of 2011 was preferred jointly by ICICI Bank Limited and Assets Care and Reconstruction Enterprises Ltd. before the High Court of Bombay. The said application was decided by the High Court of Bombay on 05.05.2011 and granted the said application.
6. In the aforesaid background, learned advocate Ms.Yajnik submitted that Assets Care and Reconstruction Enterprises Ltd. disposed of certain assets of the company in liquidation without permission of this Court under the Securitization and Reconstruction on Financial Assets and Page 4 of 7 HC-NIC Page 4 of 7 Created On Thu Oct 01 02:06:23 IST 2015 O/COMA/17/2014 ORDER Enforcement of Security Interest Act, 2002 ('SARFAESI Act' for short). Said company thereafter informed the Official Liquidator by a communication dated 31.10.2011 that they have disposed of the assets of the company in liquidation and thereafter deposited amount of Rs.3,86,00,000/ with Official Liquidator towards the share of the workers, dues of the company (In Liquidation) and the said amount is kept in FDR in the concerned Bank. In addition to the aforesaid contention, learned advocate Ms.Yajnik submitted that the applicant has lodged its claim in the prescribed form No.66 before the Official Liquidator and therefore permission be given to the Official Liquidator to forward the said claim to the concerned Chartered Accountant for its verification and after getting the report from the concerned Chartered Accountant, the Official Liquidator will file appropriate report before this Court.
7. I have considered the submissions canvassed Page 5 of 7 HC-NIC Page 5 of 7 Created On Thu Oct 01 02:06:23 IST 2015 O/COMA/17/2014 ORDER on behalf of learned advocates appearing for the concerned parties. It is revealed from the record that the decree is passed by City Civil Court, Ahmedabad, in favour of the applicant in Summary Suit No.5982 of 1998 filed by the applicant. Thereafter, Execution Proceedings were also filed by the applicant against M/s.Mardia Chemicals Pvt. Ltd. However, during the pendency of the said proceedings, the said company was ordered to be wound up and the Official Liquidator has been appointed by this Court as liquidator of the said company. Therefore, the applicant has to lodge its claim before the Official Liquidator with necessary details. Learned advocates have jointly submitted that such claim is lodged by the applicant. However, if the necessary details or documents are not submitted by the applicant, the same may be submitted in the office of the Official Liquidator within a period of two weeks from the date of receipt of this order. The Official Liquidator shall thereafter forward the claim lodged by Page 6 of 7 HC-NIC Page 6 of 7 Created On Thu Oct 01 02:06:23 IST 2015 O/COMA/17/2014 ORDER the applicant with documents and details to the concerned Chartered Accountant for its verification. The report shall be called for from the concerned Chartered Accountant within a period of four weeks thereafter. After the verification report is received from the concerned Chartered Accountant, the Official Liquidator shall file appropriate report before this Court.
8. With these observations and directions, this application is disposed of.
(VIPUL M. PANCHOLI, J.) ANKIT Page 7 of 7 HC-NIC Page 7 of 7 Created On Thu Oct 01 02:06:23 IST 2015