Gujarat High Court
Official Liquidator Of Various ... vs .....Respondent(S) on 28 January, 2013
Author: R.M.Chhaya
Bench: R.M.Chhaya
OFFICIAL LIQUIDATOR OF VARIOUS COMPANIES (IN LIQUIDATION)....Applicant(s)V/S.....Respondent(s) O/OLR/106/2012 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD OFFICIAL LIQUDATOR REPORT NO. 106 of 2012 ================================================================ OFFICIAL LIQUIDATOR OF VARIOUS COMPANIES (IN LIQUIDATION)....Applicant(s) Versus .....Respondent(s) ================================================================ Appearance: OFFICIAL LIQUIDATOR for the Applicant(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA Date : 28/01/2013 ORAL ORDER
1. By way of this report, the Official Liquidator has prayed for the following reliefs:-
a) This Hon'ble Court may be pleased to take on records the recommendations of the selection Committee, and constitute panel of advocates for conducting the cases of the Official Liquidator before this Hon'ble Court;
b) This Hon'ble Court may be pleased to permit the Official Liquidator to conduct meeting with the Sr. Advocate/Sr. Designated Advocate/Sr. Law Officer as are available in the Hon ble High Court of Gujarat and to maintain the names of such Sr. Advocate/Sr. Designated Advocate/Sr. Law Officer to be engaged on case to case basis as Special Arguing Counsel on such fees as may be determined by this Hon'ble Court and as per the scheme for engagement of advocates sanctioned by this Court;
This Hon'ble Court may be pleased to permit the Official Liquidator to appoint Two Senior Standing Counsel (Senior Arguing Counsel), Two Additional Standing Counsel, Four Panel Advocates (panel Counsels) and three Drafting Counsels as provided in the scheme sanctioned by this Hon'ble Court;
d) Such other and further orders and directions as this Hon'ble Court may deem, fit and proper in the matter, may also be passed.
2. As can be culled out from the record, the Official Liquidator filed an application being Official Liquidator Report No.39 of 2006, wherein similar prayers were prayed for and by an order dated 3.5.2006 at Annexure-A to this application, this Court (Coram: R.S. Garg, J. as he then was) has allowed the said application and had observed thus:-
5. Taking into consideration the totality of the circumstances and the workload of theh Official Liquidator, I am of the opinion that the report deserves to be allowed. The Official Liquidator is allowed to retain the following advocates from Annexure:C/1:-[1]
Mr.Asit B. Joshi [2] Mr. Samir B. Bundela [3] Mr. Pratik S. Shah [4] Mr. Hiren M. Modi [5] Mr. Kirankumar Lalchand Sharma.
6. From Annexure:C/2, the Official Liquidator is allowed to engage [1] Mr. Mrugesh J. Jani and [2] Mr. Sudhir M. Mehta and from Annexure:C/3, he is allowed to engage [1] Ms. Ami Yagnik and Mr. Jagdish S. Yadav.
7. The Official liquidator shall pay retention charges of Rs. 5,000/-, Rs.7500/- and Rs. 10,000/- to the advocates in Annexures: C/1, C/2 and C/3 respectively. The Official Liquidator may issue necessary notice/letters to the counsel who have been approved by this Court.
He may require the counsel retained/engaged by him to help and assist him in his day-to-day work and also to represent him in the Court.
8. The Official Liquidator is given liberty to make further application if he finds that more advocates are required. He would also be free to make an application to this Court for removal of any advocate from the select list if he finds that such particular counsel is unable to help and assist him in his day-to-day work or in representing him in the Court. Retention fees to the lawyers shall be paid from the Company Paid Staff Salary Reserve Fund. The Official Liquidator Report No. 39 of 2006 stands disposed of.
3. It further appears from the record that out of the list which was empaneled by the order dated 3.5.2006, four learned advocates Mr. Sudhir Mehta, Mr. Asit B. Joshi, Mr. Sameer Bundela and Mr. Pratik S. Shah tendered their resignations. It further reveals from the record that thereafter, an application was filed by the Official Liquidator being Official Liquidator Report No. 87 of 2007 for appointment of Mr. Nitin Mehta as an advocate on the panel of the Official Liquidator and also for revision in the retainership fee of the panel advocate which came to be allowed vide order dated 9.5.2007 passed by this Court.
4. It further appears from the record that thereafter, the Official Liquidator filed an application for similar prayers being Official Liquidator Report No. 93 of 2009 which came to be allowed by this Court (Coram: Jayant Patel, J.) vide order dated 25.8.2009. It may be noted that by an order dated 25.8.2009, directions were issued to the Official Liquidator to invite the applications from the intending advocates by displaying notice at various Courts. By the aforesaid order, this Court constituted a Selection Committee for the scrutiny of the applications received from the interested advocates for empanelment of the advocates for the office of the Official Liquidator.
5. It is also pertinent to note that by an order dated 24.2.2012, this Court (Coram: K.M. Thaker, J.) issued certain directions and observed thus:-
8. According to the submission of OL, the life/tenure of the panel selected/confirmed by the Court has come to an end w.e.f. May/June 2009.
However, for want of any report from the office of OL, any orders either constituting fresh panel or extending the period of existing panel or reviewing or revising the existing panel have not been passed and therefore, OL has taken out present report.
The OL also made reference of the report made by the Registrar of Companies and the discussion on that count at the relevant time by the learned Company Court with the Hon'ble the Chief Justice.
8.1 It is informed to this Court by the OL that besides the names in the list prepared by the Registrar General, on the basis of the decision of the Selection Committee constituted in accordance with the Scheme approved with modification by the Court vide order dated 25.8.2009 passed in OLR No.93 of 2009, the Hon'ble Single Judge taking up the company matters and the Hon'ble the Chief Justice, after certain deliberations and having inquired about the willingness of other advocates, have drawn a list of advocates who may be empaneled in the panel to be constituted in view of OL's request in present report for the period mentioned in the Rules. The list so drawn has been made available to this Court. Since the relevant details, such as total number of years of practice, etc. of the said advocates are not available on record or along with the said list, it is considered appropriate to forward the above mentioned list in a closed cover to the Registrar General, who may call for the similar details (as were called for from other learned Advocates) of the advocates in the above mentioned list and the said compilation may be placed before the Selection Committee in accordance with the Scheme approved with modification by the Court vide order dated 25.8.2009 passed in OLR No.93 of 2009 and then, the suggestion and decision of the Selection Committee may be placed on record for appropriate orders.
The said list is placed in a closed cover and it is handed over to the Court Master (Shirastedar) to personally place it in the hands of the Registrar General along with a copy of this order.
8.2 In furtherance of the above directions, the OL is also directed to undertake the required/prescribed procedure to invite the response from the advocates for empaneling for representing the office of OL before different Tribunals, Courts and other fora e.g. DRT, Civil Court, Labour Court, Railway Claims Tribunal and such other Tribunals/Courts.
8.3 For such purposes, the OL shall follow the procedure prescribed under the scheme and call for the names of the advocates interested for empanelment and place the details before the constituted committee under the Scheme and thereafter place the suggestions and recommendations of the committee before the Court for further orders.
6. It may further be noted that the Official Liquidator again filed an application being Official Liquidator Report No. 294 of 2011 mainly for the purpose of appointment of a special arguing counsel which came to be disposed of, wherein an order came to be passed on 6.3.2012 which is annexed at Annexure-E to this report and the same came to be disposed of by judgment and order dated 18/19.7.2012. It may further be noted that it has been informed by the Official Liquidator that the aforesaid judgment and order dated 18/19.7.2012 was subject matter of an intra-Court O.J. Appeal. However, in the opinion of this Court, the said issue is not germane to the prayers prayed for and therefore, it is not dealt with further.
7. It appears that thereafter, the present application is filed. It may further be noted that earlier application being Official Liquidator Report No. 294 of 2011 was withdrawn with a liberty to file a fresh as the further directions were to be sought for by the Official Liquidator. This Court (Coram: Smt. Abhilasha Kumari, J.) passed the following order on 23.8.2012:-
This Report of the Official Liquidator had been originally filed in Official Liquidator's Report No.294 of 2011 that was disposed of by this Court vide order dated 18-19/7/2012. As the subject matter of this Report was at variance with the prayers made in Official Liquidator's Report No.294 of 2011, the Official Liquidator was permitted to withdraw the present Report with liberty to file it afresh.
Accordingly, the present Report has been filed, inter alia, seeking directions from this Court to constitute the Panel of Advocates for conducting cases of the Official Liquidator, before this Court.
The three sealed covers that had been placed on record in Official Liquidator's Report No.294 of 2011 had been resealed and retained by the Court after the same was disposed of. The said covers have been re-opened today and their contents shall be considered in this Report.
Before the prayers made in the Report can be considered, some factual information would be required. The Official Liquidator may apprise this Court regarding the dates and number of notices that have been issued inviting applications of advocates and the list of advocates who have submitted their applications pursuant thereto, within the stipulated period of time. For this purpose,the matter is adjourned to 6-9-2012.
List on 6-9-2012.
8. This Court (Coram: Smt. Abhilasha Kumari, J.) issued further directions vide order dated 6.9.2012, which reads as under:-
1. Pursuant to the order dated 23.08.2012, the Official Liquidator has filed a Report dated 03.09.2012. From the said Report, it appears that Notice was issued for engagement and empanelment of advocates on 10/11.09.2009. Applications were called from the eligible and interested advocates for the following categories:
(1) Senior Standing Counsel (2) Additional Senior Standing Counsel (3) Additional Standing Counsel (4) Counsel for Title Search (5) Drafting/ Additional Drafting Counsel (6) Panel Advocate A summary of the number of applications received for each category has been given on Page 106 of the Report of the Official Liquidator. In all, 203 applications for all categories were received. A Committee comprising the Registrar General of this Court, the Official Liquidator and a Nominee of the Registrar General, have shortlisted the applications and prepared a proposed panel.
It is noticed by this Court that all the applications have been received in the year 2009. Much time has elapsed since then. It may be possible that some of the learned advocates who had applied at that point of time, may not be willing to accept the assignment or, if willing, may, or may not, be in a position to devote sufficient time, as would be required. On the other hand, a large number of learned advocates may have now acquired eligibility over the intervening period of time for being considered in the categories of advocates to be empaneled, for the Office of the Official Liquidator, as per the Scheme.
Therefore, in order to attract more talent and to give all learned advocates who are willing and eligible a fair chance, in the view of this Court, a fresh Notice is required to be issued by the Official Liquidator, inviting applications from willing and interested advocates for empanelment in the above categories.
In the above circumstances, the following directions are issued:
(1) The Official Liquidator shall issue a fresh Notice inviting applications from willing and interested advocates for empanelment in the above categories for the Office of the Official Liquidator.
(2) The Notice shall be issued by the Official Liquidator within a period of one week from the date of receipt of a copy of this order.
(3) The Notice, along with the Scheme of engagement as approved by this Court, shall be displayed on the website of the Official Liquidator, website of the Gujarat High Court, and on the Notice Boards of the Gujarat High Court Advocates' Association, Bar Council of Gujarat and all other prominent Bar Associations, as has been done when the previous Notice was issued.
(4) The same procedure, as was followed by the Official Liquidator when the Notice was issued on 10/11.09.2009, be followed.
(5) After receipt of the applications, the Committee, consisting of the Registrar General of this Court, Official Liquidator and a Nominee of the Registrar General, shall segregate the applications in different categories, according to the eligibility for the categories of advocates that are to be empaneled as per the Scheme. The said Committee shall then submit the names of the advocates who are eligible, category-wise, before this Court in a sealed cover.
(6) The Official Liquidator shall file compliance Reports after issuing the Notice, receipt of applications and after segregation of the applications into different categories.
(7) Till such time as the panel is to represent the Office of the Official Liquidator in the High Court of Gujarat, the learned advocates who are in the panel as of date, shall continue.
6. The Reports of the earlier selection made by the Committee are being re-sealed, but shall remain on the record of the case till the final selection of the new panel is made.
7. It may be clarified that those advocates who had applied earlier, pursuant to the previous advertisement, may also apply afresh, if they so desire. The previous applications will not be considered.
8. The Report may be listed on 04.10.2012.
9. It further reveals from the record that as per the directions issued by this Court vide order dated 6.9.2012, the Official Liquidator published a notice on 12.9.2012 inviting applications from eligible and interested advocates for six categories, as enumerated in the order dated 6.9.2012.
10. It further appears that Mr. B.M. Mamtora, Registrar (Vigilance) of this Court was included in the Committee as nominee of the Registrar General for scrutinizing the applications received pursuant to the advertisement and accordingly, the applications received were scrutinized by the Committee so appointed and the said Committee has submitted its final report on 23.1.2013 in a sealed cover which is opened. It reveals from the report that the Committee has carried out the directions issued by this Court vide order dated 6.9.2012 and have also gathered further information from the learned advocates who have applied for various categories. It appears that the Committee has scrutinized the applications category-wise and has examined each and every applications as can be seen from the report so submitted. As per the opinion expressed by the Committee on scrutiny, the Committee has shortlisted the candidates for different categories.
11. Considering the aforesaid report in detail, it is found that the Committee has scrutinized the applications so received and has suggested the aforesaid names in different categories.
12. It may be noted at this stage that the aforesaid panel is constituted for this Court and empaneled for handling the work of the Official Liquidator as per the category. It is further made clear that there is no category of special arguing counsel and the Official Liquidator shall engage the counsels only from the above categories and the Official Liquidator shall not engage any other counsel without specific and prior approval of this Court.
13. This Court has examined the report submitted by the Committee along with the annexures and it is revealed that the Committee has suggested names which deserve to be accepted. It may, however, be noted that as noted by the Committee, the present empanelment would be for the learned advocates who have to appear before this Court and to handle the work by the Official Liquidator as are empaneled in the category 5 and 6 also. It is, however, made clear that as noted by the Committee, it would be open for the Official Liquidator to follow similar procedure for empanelment of learned advocates for handling the work of the Official Liquidator in subordinate Courts and other forum as per the order passed by this Court (Coram: K.M. Thaker, J.) dated 3.2.2012 in Company Application No.348 of 2011.
14. The Official Liquidator is hereby permitted to appoint the following learned advocates as per the categories enlisted below.
Sr No Name of the Advocates Category Years Minimum experience Experience gained by advocate 1 [A] Mr. Gaurang H. Bhatt [B] Ms. Amee Yajnik Senior Standing Counsel (Senior Arguing Counsel) Not less than 15 years [A] 35 years [B] 28 years 2 [A] Mr. Jagdish S. Yadav Addl.
Senior Standing Counsel (Standing Counsel) Not less than 10 years 20 years 3 [A] Mr. Pritesh L. Parikh [B] Mr. Saurabh M. Patel Addl.
Standing Counsel (Addl.
Standing Counsel) Not less than 07 years [A] 20 Years [B] 08 years 4 [A] Ms. Reeta Chandarana [B] Mr. Pathik M. Acharya [C] Mr. Bhargav S. Hasurkar [D] Ms. Bhoomi M. Thakor Panel Advocate (Panel Counsel) Not less than 5 years [A] 12 years [B] 08 years [C] 05 years [D] 05 years 5 [A] Mr. Chaitanya S. Joshi Counsel for Title Search Not less than 03 years 05 years 6 [A] Mr. Jitendrasingh T. Yadav [B] Mr. Niraj V. Ashar [C] Mr. Pinal C. Joshi Drafting / Addl. Drafting Counsel (Drafting Counsels) Note less than 03 years [A] 14 years [B] 13 years [C] 11 years
15. The Official Liquidator shall pay fees and remuneration as per the scheme to the respective counsels and advocates. Taking into consideration the aforesaid facts the report is allowed in the aforesaid terms. The report submitted by the Selection Committee be handed over to the Official Liquidator in a sealed cover.
(R.M.CHHAYA, J.) mrp Page 14