Calcutta High Court
Gourepore Company Limited (In ... vs Carnation Distributors Pvt. Ltd on 27 April, 2017
Author: Sanjib Banerjee
Bench: Sanjib Banerjee, Siddhartha Chattopadhyay
OD-2
APO 160 of 2017
ACO 37 of 2017
With
CA 107 of 2016
OCO 6 of 2017
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Original Side
In the matter of :-
GOUREPORE COMPANY LIMITED (IN LIQUIDATION)
And
CARNATION DISTRIBUTORS PVT. LTD.
Vs.
THE OFFICIAL LIQUIDATOR & ANR.
BEFORE:
The Hon'ble JUSTICE SANJIB BANERJEE
And
The Hon'ble JUSTICE SIDDHARTHA CHATTOPADHYAY
Date : April 27, 2017.
Ms. Manju Agarwal, Advocate appears.
Mr. B. Manot, Advocate appears.
Mr. Abhrajit Mitra, Sr. Advocate appears.
Mr. Jishnu Chowdhury, Advocate appears.
Mr. Aritra Basu, Advocate appears.
Mr. S.K. Kundu, Advocate appears.
Mr. Debrup Bhattacharya, Advocate appears.
Mr. P.K.Tulsyan, Advocate appears.
Mr. Deepnath Roy Chowdhury, Advocate appears.
Mrs. Ruma Sikdar, Advocate
appears for Official Liquidator.
Mr. S.C.Prasad, Advocate appears.
The Court :- The order impugned has been passed on an application by
what appears to be a fly-by-night operator to grab the assets of the company in
liquidation. One Ashray Vyapaar Private Limited, the second respondent herein, sought
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a direction from the Company Court for a meeting of the creditors of the company (in liquidation) to be held to consider a scheme under which such respondent proposed to revive the company and, virtually, take over all its assets and properties.
It does not appear that any list of the creditors of the company (in liquidation) correct upto the date of the relevant application was called for by the Company Court before directing a meeting of the creditors to be convened. The second respondent says that the Official Liquidator had prepared a list of creditors and the same would be evident from an affidavit of the Official Liquidator filed in connection with an application of 2011. A copy of such affidavit of the Official Liquidator appears at pages 177 to 183 of the appeal papers. The relevant affidavit does not indicate the complete list of the creditors of the company in liquidation or mention the debt of even a solitary creditor, whether secured or unsecured. In the circumstances, it cannot be fathomed how a meeting of the creditors of the company in liquidation could have been called or how such meeting could have resulted in anything productive.
It is elementary that creditors have votes according to their percentage of dues qua the entirety of the dues of a company in liquidation. Without the individual voting rights of the creditors being ascertained, a meeting is a farce.
No steps will be taken in pursuance of the order impugned or any purported meeting that may have been held in terms thereof.
The Official Liquidator will ensure that not a nut or bolt is removed from the factory premises or any premises of the company in liquidation whether by the second respondent or by any other pretender.
All papers relied upon before the Company Court in connection with the application on which the order was passed will be included in an informal paper book to be prepared by the appellant.
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The Official Liquidator will file a report at the time of final hearing detailing the creditors, the quantum of the debts due, including to the workmen and other employees of the company in liquidation. The Official Liquidator's report will also detail the list of assets of the company in liquidation and the reports of the inventories carried out on behalf of the Official Liquidator.
Since the application before the trial court filed by the second respondent indicates that the second respondent herein posts security guards at the facilities of the company in liquidation, the Official Liquidator will ensure that the Official Liquidator's guards are in position and protect the assets of the company in liquidation. If the secured creditors of the company in liquidation do not immediately defray the expenses for the security guards, the Official Liquidator will incur the expenses from the Official Liquidator's Establishment Charges Account, subject to further orders. The guards posted must not belong to any security agency that is floated, controlled or partly owned by any person previously associated with the office of the Official Liquidator.
The appeal will appear a week after the summer vacation.
Urgent certified website copies of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(SANJIB BANERJEE, J.) (SIDDHARTHA CHATTOPADHYAY, J.) sg.