9911796707
TMI Blog2010 (1) TMI 956X X X X Extracts X X X X X X X X Extracts X X X X ..... 1/1118 and 110/1119 admeasuring about 32136.90 sq. meters, situated at Champaner Road, Moje Khinjarva, Taluka Savali, District Vadodara admeasuring in aggregate 60,464.90 sq. meters apropos to the order dated March 18, 2008, made by this court in O. L. R. No. 37 of 2008 read with order dated November 21, 2008, passed by this court in Company Application No. 443 of 2008. The applicant has further prayed for a direction to the respondents to take all necessary steps to provide fresh electricity connection in respect of the land in question without insisting to pay the outstanding electricity dues of the pre-liquidation period of the company in liquidation. The applicant has further prayed for direction to the respondents to provide temporary electricity connection at the site of M/s. Jalan Forgings Ltd. (in liquidation), at the land described hereinabove, without insisting to pay the outstanding electricity dues of the pre-liquidation period of the company in liquidation. 2. An affidavit in support of judges summons is filed by one Mr. Suresh Agarwal, director and authorised officer of the applicant. An affidavit in reply is filed on behalf of respondents Nos. 2 and 3 by the executi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le deed in favour of the applicant. This court vide its order dated November 21, 2008, directed the official liquidator to make sale deed in favour of the applicant and also directed the official liquidator to hand over all the original documents to the applicant in respect of the property in question. 5. Pursuant to the said order dated November 21, 2008, two separate sale deeds came to be executed in favour of the applicant on April 16, 2009. Since the applicant was desirous to start up its unit, the applicant on May 7, 2009, made an application to the respondent electricity company for getting new electricity connection of 4,000 KVA by providing a new HT connection. The applicant also paid requisite fees for registration of the application to the respondent electricity company. In response to its application, the applicant received a communication from the respondent electricity company on May 11, 2009, wherein the applicant was directed to pay the dues of the company in liquidation for the pre-liquidation period though the same is contrary to clause 15 of the terms and conditions of sale. Respondent No. 3 informed the applicant on May 22, 2009, that there are arrears of Rs. 3, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th the provisions contained in the Companies Act. He has therefore submitted that the stand of the respondent electricity company is erroneous and contrary to law. Mr. Pahwa has further submitted that the only object of filing the present company application before this court is to clarify that clause 15 also includes electricity dues and the applicant being the auction purchaser and covered by clause 15 of the terms and conditions is not liable to pay the outstanding electricity dues for the pre-liquidation period. He has therefore submitted that this court should suitably clarify/modify the order dated March 18, 2008, in O. L. R. No. 37 of 2008 read with the order dated November 21, 2008, passed in Company Application No. 443 of 2008, whereby the sale was confirmed in favour of the auction purchaser, including the right of appointment of nominee and the title was transferred in favour of the applicant on the terms, including the term/clause No. 15 of the terms and conditions of sale. 7. Mr. Pahwa further submitted that in a similar matter filed by one auction purchaser being Company Applications Nos. 11 of 2008 and 12 of 2008, this court by final order dated March 3, 2008, has d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the court, it is observed that the auction purchasers are not liable to discharge any of the liabilities pertaining to the pre-liquidation period of the company in liquidation and all attachments which are made on the assets of the company in liquidation are required to be removed and the auction purchasers are entitled to get absolute, clear and marketable title, free from all encumbrances of the preliquidation period of the company in liquidation. (IV) In Torrent Power AEC Ltd. v. Shreeji (Rakhial) Commercial Co-operative Housing Society Ltd., AIR 2006 Guj 190 ; Division Bench of this court held that a consumer is one who receives, or is supplied electric power and premises are of consumer. Supply of electric power can be disconnected where any person neglects to pay any charge for electricity in respect of supply which was made to said person. Premises cannot be a consumer. The court further held that the appellant electricity company's contention that it required to supply power to premises and not to person and hence, if premises are transferred, then transferee is liable to clear the dues of the transferor is without any force and substance. (V) In Ananta Mills Ltd. (in liq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st upon the liquidator that a winding up order being made, he must collect all the assets, properties, effects and choses-in-action of the company. Section 456(2) again enacts a deeming fiction by which all those properties collected by the liquidator shall be deemed to be in custody of the court. If the liquidator fails to collect the assets of the company, he would be charged for negligence in performance of duty. Therefore, while performing the duty, if he comes across any sale of property of the company which would be void under any of the provisions of the Companies Act or any other law for the time being in force and which would not be binding on him a liquidator of the company, it would be equally his duty to take action to collect those assets. If this is the duty cast on the liquidator, simultaneously power was conferred upon him under section 457(1) to institute or defend any legal proceeding. If he has power to institute or defend legal proceedings and if in performance of his duty, he comes across a transaction which is void against him, the transaction becoming void because of the winding up proceedings, it would be a question of fact arising in the course of winding u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shape of electricity dues of the company as claimed by the respondent-company and as a condition precedent for being entitled to be considered for getting new power connection from the respondent-company at the premises that were formerly properties of the company in liquidation. He has further submitted that the civil dispute has arisen, after the completed sale and after the applicant has become full and absolute owner of the properties upon a completed sale thereof by the official liquidator, between the applicant and the respondent-company and this court has no jurisdiction to entertain and adjudicate the said dispute. He has further submitted that unless a particular matter is specified in the Companies Act or the Rules framed thereunder as one to be dealt with by the company court, it cannot exercise jurisdiction merely because it pertains to a claim by the respondent against the purchaser of properties and formerly belonging to the company in liquidation sold to the applicant by the official liquidator. Mr. Pandya further submitted that the Companies Act specifies certain questions or disputes to be resolved by the Central Government, certain matters by the Company Law Board ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt is amply supported by judicial pronouncement of the High Courts and the apex court. By merely looking at the manner and words in which relief is claimed and by merely using the words in the interest of justice this court cannot overlook the real substance of the dispute of which adjudication is sought by the present proceedings and this court thereby could not be expected to exercise jurisdiction otherwise not vested in it. 11. Mr. Pandya further submitted that the respondent electricity company is not making a claim under the provisions of the Companies Act nor it is making any claim on the strength of anything contained in the order of this court dated March 16, 2008, read with order dated November 21, 2008, passed in O. L. R. No. 37 of 2008 and Company Application No. 443 of 2008. He has further submitted that the respondent is not making claim as a creditor under the provisions of the Companies Act and is not making any claim on the basis of any priority in the matter of payment of sums demanded from the applicant under the provisions of the Companies Act so as to require any clarification/modification or declaration as sought for. He has further submitted that it is not d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Law Board, either expressly or by implication, all other disputes pertaining to a company are to be resolved through the forum of civil courts when the disputes are capable of being resolved by them." The court further held that (headnote of 50 Comp Cas) : "The definition of 'court' in clause (11) of section 2 and section 10 of the Companies Act, 1956, dealing with 'jurisdiction of courts' read together only enable the shareholders to decide as to which court they should approach for remedy in respect of a particular matter. It is difficult to construe the definition clause as one conferring jurisdiction exclusive or otherwise and even section 10 refers only to 'the court having jurisdiction under this Act' where such jurisdiction is conferred by the Act under particular sections like sections 107, 155, 163(2), 237. 397, 425, etc. The conferment of jurisdiction on 'the court' is not under section 10 but by the other provisions of the Act. The court further held that : Section 10 of the Act does not purport to invest the company court with jurisdiction over every matter arising under the Act. In view of the elaborate provisions contained in the 1956 Act in regard to management a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mp Cas) : "In respect of all matters dealt with under the Companies Act, 1956, the court having jurisdiction is the court as defined under section 10 of the said Act. But in respect of matters not dealt with by the Companies Act or for which the Companies Act does not provide remedies, the ordinary civil court alone will have jurisdiction. In other words, the civil court will have no jurisdiction only in respect of matters falling exclusively within the jurisdiction of the court having jurisdiction under the Companies Act." The court further held that (headnote of 64 Comp Cas) : "A suit filed by a company against its former managing director for rendition of accounts cannot be considered to be a matter within the Companies Act and hence the ordinary civil court will have jurisdiction in the matter." (5) In R. R. Rajendra Menon (No. 2) v. Cochin Stock Exchange Ltd. [1990] 69 Comp Cas 256 (Ker), it is held that (headnote) : "Unless a particular matter is specified in the Companies Act as one to be dealt with by the company court, it cannot exercise jurisdiction merely because it is also a matter which relates to a company. There is no provision in the Companies Act, expressly or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 97 and 398 are effective to grant relief to individual members under all circumstances. Therefore, a suit filed by a shareholder against refusal by the company to accept the notice given by the shareholder under sections 284 and 257 to move certain resolutions for removal of directors and proposing the names of persons as directors in their place at the annual general meeting of the company, would be maintainable." (8) In Poonamchand Kothari v. Rajasthan Tube Manufacturing Co. Ltd. [1996] 87 Comp Cas 842 (Raj), while dismissing the petition, filed under section 10 of the Companies Act, 1956, the court held that (headnote) : ". . . the power under section 10 could be exercised by the court only in respect of the matters for which the jurisdiction was conferred by other provisions of the Act or the rules made thereunder. The High Court when acting as a company court had special jurisdiction conferred by the provisions of the Companies Act or Rules made thereunder and the power could not be exercised as a general power or as plenary or residuary jurisdiction. If there was any dispute between the subscriber and the company, it could be tried in a civil court. Even if any provision ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tatute is such that such prohibition is necessarily to be implied. There is no provision in the Act expressly barring the jurisdiction of the civil court with respect to all matters arising under the Act. The bar of jurisdiction is implied and is in respect of some matters only. Neither section 2(11) nor section 10 of the Companies Act creates jurisdiction with respect to all matters arising under the Act concerning a company whose registered office is located within the jurisdiction of the company court. The jurisdiction of the court is to be ascertained from the other substantive provisions of the Act. The exclusive jurisdiction of the company court is therefore limited to matters which are required by the other provisions of the Act to be dealt with by the court. Section 283 of the Companies Act sets out the circumstances on the occurrence of which the office of a director shall become vacant. The section does not contemplate any application being made to the company court either to declare that the office has been vacated or to declare that the office has not been vacated. The company court cannot, therefore, entertain a petition to declare that the petitioner continues to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase further held that (headnote) : ". . . the civil court was concerned with the rival claims of the parties as to whether one party had illegally been dispossessed by the other or not. The dispute between the parties was eminently a civil dispute and not a dispute under the provisions of the Companies Act. Such a suit, apart from the general law, would also be maintainable in terms of section 6 of the Specific Relief Act, 1963." (13) In Vijay Kumar Gupta v. Ram Naresh Singh [2004] 52 SCL 60 (Pat.), it is held that (headnote) : "The jurisdiction of the civil court is a very expansive one as is evident from section 9 of the Code of Civil Procedure, 1908, and its exclusion is not to be readily inferred. Unless its jurisdiction is barred by the statute either expressly or by implication it has jurisdiction to entertain a suit concerning a dispute of a civil nature. If a statute creates a special right or liability and a forum for determination of the same and provides that all questions concerning such right or liability are to be determined by the said Tribunal or forum and bars the jurisdiction of the civil court, then such rights and liabilities are to be determined by the Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses. After payment of the entire amount the Board can give reconnection to a new consumer. It is also open to the Board to recover the amount through revenue recovery proceedings from the previous consumers, but on recovery of the said amount it should be refunded to the new consumer. Such a provision cannot be said to be a illegal provision." 13. Mr. Pandya further submitted that the applicant has wilfully and deliberately suppressed material fact from this court and thereby misdirected the court. The applicant has not disclosed the fact that prior to moving this court by presenting the present proceedings the applicant-company had approached the Consumer Grievances Redressal Forum with its complaint against non-release of the new HT connection of 4,000 KVA due to non-clearance of pending arrears of the previous consumer, i.e., the company in liquidation. The matter was adjudicated by the forum and in the light of the judicial pronouncement of the apex court in the matter of Paschimanchal Vidyut Vitran Nigam Ltd. v. DVS Steels & Alloys (P.) Ltd. [2009] 1 SCC 210 ; the forum held that non-release of new HT connection to the complainant by MGVCL, pending the payment of past arrears ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er submitted that the validity of this condition 2(j) has been upheld by the Division Bench of this court by its judgment dated July 18, 2005, rendered in L. P. A. No. 691 of 2003. He has further submitted that similar denial to supply power without the outstanding dues from the previous consumer are cleared, has been upheld by the High Court of Kerala in the case of K. J. Dennis v. Official Liquidator [2002] 108 Comp Cas 353 and K. G. Purushothaman v. Kerala State Electricity Board, AIR 2007 Ker 201. The demand made by the respondent is thus justified in law and the applicant, who is governed by the above condition of supply, is therefore not entitled to the reliefs sought for. 17. Mr. Pandya further submitted that the apex court in its judgment in the matter of Paschimanchal Vidyut Vitran Nigam Ltd. (supra) has held that : "Distributor of supply of electricity can stipulate as one of the conditions of supply that the arrears due in regard to the supply of electricity to the premises when it was in occupation of the previous owner/occupant should be cleared before electric supply is restored to the premises or a fresh connection is provided to the premises. If there be any statu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nes v. Karam Chand Thapar AIR 1961 SC 838, it is held that though under section 31(4) of the Mines Act, 1923, the regulations became part of the Act, they are not repealed along with the Act by section 88 of the Mines Act, 1952. The Rules and Regulations do not lose their character as rules and regulations, even though they are to be of the same effect as if contained in the Act. They continue to be the rules subordinate to the Act, and though for certain purpose, including the purpose of construction, they are to be treated as if contained in the Act, their true nature as subordinate rule is not lost. Therefore, with regard to the effect of a repeal of the Act, they continue to be subject to the operation of section 24 of the General Clauses Act. (c)In Brihan Maharashtra Sugar Syndicate Ltd. v. Janardan Ramchandra Kulkarni [1960] 30 Comp Cas 468 (SC) it is held that section 658 of the Companies Act, 1956, might have been enacted ex abundanti cautela, but, by virtue of it, section 6 of the General Clauses Act, remains applicable with respect to the effect of the repeal of the Indian Companies Act of 1913. The latter section preserves the rights and liabilities created by section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to whether the notification issued by the Chief Commissioner of Delhi under the Act of 1918 continues to be in force under the Act of 1952. While giving an answer to this question the court referred to section 24 of the General Clauses Act, which says that : "where any Central Act . . . is, after the commencement of this Act, repealed and re-enacted with or without modification, then, unless it is otherwise expressly provided, an . . . notification . . . issued under the repealed Act . . . shall, so far as it is not inconsistent with the provisions re-enacted, continue in force, and be deemed to have been issued under the provisions so re-enacted, unless and until it is superseded by any notification issued under the provisions so re-enacted". (g)In Deep Chand v. State of U. P. AIR 1959 SC 648, the court while assuming that Parliament in the present case by enacting the Amending Act repugnant to the State law with respect to the same subject-matter, i.e., nationalisation of road transport, impliedly repealed the State law, section 6 of the General Clauses Act saves the scheme framed under the U. P. Act ; a scheme framed is a thing done under the repealed Act within section 6 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prevented from insisting upon compliance with the demand as a precondition of being entitled to power supply, which demand, it can legally make. This court's jurisdiction cannot be invoked for that purpose. He has, therefore, submitted that the application deserves to be dismissed. 21. While dealing with the preliminary objections raised by Mr. Pandya on behalf of the respondent, Mr. Phawa in rejoinder has submitted that the terms and conditions of sale are approved by this court, based on which the sale of the properties in question was confirmed in favour of the applicant. He has further submitted that no civil dispute has arisen as alleged by the respondent. He has further submitted that this court is having the jurisdiction to entertain the application and to grant the relief as prayed for. This court is a court of winding up and it ipso facto has jurisdiction to entertain the proceedings of the nature initiated by the applicant and this court has the jurisdiction to decide the claims by or against the company in liquidation as per the provisions of section 446(2) read along with other relevant provisions of the Act. Mr. Pahwa has further submitted that as per the scheme of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsidering this object and the scheme of the Act, the respondent-company has no option but to lodge its claims with the official liquidator. The claim of the respondent-company until the date of winding up are required to be settled as per the above provisions of the Act. 23. Mr. Pahwa further submitted that the jurisdiction of this court is the special jurisdiction in view of the fact that the jurisdiction of this court is under the Act which is a special law. This court is only the competent court to decide the issues arising from the winding up proceedings. The relevant provisions of the Act also contain non obstante clause. Hence, no other court or forum is competent to decide the issues, which this court alone can decide. He has further submitted that the condition No. 2(j) of the conditions of supply as referred to by the respondent-company is misconceived. The said condition is not binding on the sales effected under the order of this court. The sales effected under the order of this court are governed only by the terms and conditions approved by this court read with the provisions of the Act, which is a special law. He has further submitted that even otherwise condition No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ereunder as well as the judicial pronouncements on the subject, the court is of the view that the present application is not maintainable as this court has no jurisdiction to decide the same and to grant the relief prayed for therein. Since the arguments are canvassed on merits, the court is of the opinion that the applicant failed to make out any case on merits so as to deserve any relief from this court. 27. The applicant, in this application, in substance seeks for adjudication of a civil dispute that has arisen between the contesting parties after the applicant has become full and absolute owner of the property that was formerly the property of the company in liquidation. No claim or question arises for adjudication under the provisions of the Companies Act. The official liquidator or the company court is in no way concerned with the dispute between the purchaser at court auction and the seller of electricity which dispute has arisen after completed sale and after the property in the premises has passed on to the purchaser. The terms and conditions of the sale of properties confirmed in favour of the applicant under the orders of this court are in no way ambiguous and call for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s over which the jurisdiction of the company court could be invoked. There is no question in the present proceedings of settlement of claims of the creditor of any category by the official liquidator under sections 529, 529A and 530 of the Act nor is there any question of invoking the company court's jurisdiction in the matter of deciding priorities. The reference to various provisions of the Act made by the applicant in its affidavit-in-reply is clearly misconceived and misplaced on the facts of the case. The applicant's claim that for adjudication of the dispute involved in the present case, the company court has exclusive jurisdiction is not at all well-founded and judicial pronouncements of the High Court of Andhra Pradesh, Calcutta, Delhi, Gujarat, Karnataka, Kerala, Madras, Patna, Punjab and Haryana and Rajasthan and the apex court have held contrary to what is sought to be contended by the applicant. The law on the point is well-settled that the civil court's jurisdiction in the matter of adjudicating disputes like the present one is not estopped and that the company court's jurisdiction is only confined to specified matters by relevant sections of the Act read with the Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) is applicable and Forum was also justified in the view taken. The judgment of the Forum not having been challenged has attained finality and as such also, no relief could be granted. 31. As per the direction given by this court at the time of hearing of this application on earlier occasion to place on record the present state of affairs and other details as regards cost involved and time that may be required for making power supply available in affidavit-in-surrejoinder, it is stated that the civil construction is still going on and the same has not come up to a stage so as to avail and utilise the power supply demanded. There are several compliances expected before the applicant can demand supply of power at the point of supply and to the knowledge of the electricity company, the said conditions are still not complied with. The applicant was addressed a letter requiring information on those vital aspects which later till date has remained unacknowledged and not replied. The existing 11KV line passing through the premises has the existing line capacity of 150 Amp. and the same is practically fully loaded. The demand of the applicant is of 4,000 KVA, i.e. 213 Amp. which cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . towards contingency, 1.5 per cent. towards transport and packaging charges, 2 per cent. towards W/C establishment charges and 15 per cent. towards supervision charges. Over and above service connection charges and the pro rata charges at 850 per KVA payable to GETCO will also be payable. The firm quotation in this behalf as per the norms and rate as approved by GERC will be given to the applicant. The rough and ready approximate estimate in this behalf comes to Rs. 63,80,106. Over and above the said sum, the applicant is also required to give security deposit which approximately would come to Rs. 1,40,00,000. Thus, the total may come to approximately Rs. 2,03,80,106. GETCO will be required to strengthen 66 KV line, the estimated cost whereof is approximately to the tune of Rs. 24.51 lakhs. 33. It is further stated in the affidavit that upon inquiry from GETCO as to the time that it would require after the grant of sanction to strengthen the 66 KV line, GETCO has conveyed that GETCO will have to tenderize the work and fix the agency finalisation whereof would take about 60 + 25 days. About 10 days would be required for the arrangement of materials. Further, it is conveyed that it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1948 Act and other Acts. Section 185(2)(a) of the 2003 Act is the saving clause. Under this provision, any act, order, notification, etc., will be saved provided : (a) Such act, order, notification is not inconsistent with the 2003 Act ; and (b) the act, order, notification is deemed to have been under the corresponding provisions of the 2003 Act. Considering clause (b) above, there has to be corresponding provision under the 2003 Act so as to provide for saving of any act, order, notification as referred to in section 185(2)(a). It is true that there is no provision akin to section 49 of the 1948 Act in the 2003 Act. Under the 2003 Act, the company has no powers to provide for terms and conditions of supply of electricity. Section 50 empowers only GERC to issue Supply Code which is to be applied uniformly by all the distribution licensees. The court, however, does not accept the submission of Mr. Pahwa that in absence of there being a corresponding provision as section 49 in the 2003 Act, clause 2(j) which came into force under a notification issued under section 49 of the 1948 Act, is not saved. In fact, considering the legal position discussed above, clause 2(j) is treated as sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f K. G. Purushothaman (supra) which was confirmed by a Full Bench of the Kerala High Court in K.R. Suraj v. Secretary, Kerala State Electricity Board, AIR 2006 Ker 194. 37. In Apex Tech Wood (P.) Ltd. v. Uttar Gujarat Vij Co. Ltd. [Special Civil Application No. 8649 of 2009, dated 7-10-2009] while rejecting the prayer made by the petitioner for declaration that the petitioner-company is not responsible for the past dues and, therefore, the demand by the respondent-company for the past dues is illegal and hence the letter raising such demand is required to be quashed and set aside, the court held that all the conditions raised by the learned advocate for the petitioner stands answered by the decision of the apex court in the case of Paschimanchal Vidyut Vitran Nigam Ltd. (supra) and, therefore, even if they are not dealt with by the court independently the same would be treated to have been answered. 38. In Gujarat Electricity Board v. Jaisal Silk Mills (P.) Ltd. [L. P. A No. 691 of 2003, dated 18-7-2005] the Division Bench of this court held that the condition of supply framed by the board in exercise of its power under section 49 of the Act are statutory and clause 2(j) thereof ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
