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TMI Blog2012 (11) TMI 966X X X X Extracts X X X X X X X X Extracts X X X X ..... KARI, J.:- For the Petitioner : Mr. Sakti Nath Mukherjee, Sr. Adv. Mr. Atanu Roy Chowdhury, Adv. Mr. Sanjib Mal, Adv. Mr. D.N. Dey, Adv. For State Respondent: Mr. Pratik Prakash Banerjee, Adv. For Official Liquidator: Mr. Mukti Nath Mukherjee, Adv. Ms. Mithua Sen, Adv. For ARC Holdings: Mr. D. N. Sharma, Adv. Mr. Shounak Mitra, Adv. JUDGMENT ASHOKE KUMAR DASADHIKARI, J.:- This application being C.A. No.765 of 2011 has been filed by the auction purchaser Company viz. Gourinandan Real Estate Private Limited having its registered office at 71, B.R.B. Basu Road, 5th floor, Kolkata 700001, for the following orders, as mentioned in the Judges Summons taken out on 9th day of August, 2011:- a) The Official Liquidator, High Court Calcutta be directed to make enquiries/further enquiries with regard to the proceeding pending before the Sub-Divisional Land and Land Reforms Officer, Srirampur, Hooghly to the land of Rishra Steel Ltd. (In liquidation); b) The Official Liquidator, High Court Calcutta be directed to file a report before this Hon ble Court pertaining to the status regarding marketability of the land of Rishra Steel Ltd. (In liquidation). c) The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on ble Apex Court in disposal of the three civil appeals being 5411-5413 of 2000 passed the following order:- When indisputably the order of winding up made on 04.06.1990 had become final and company has become non-functional for long, even BIFR could not come to its rescue and the attempt of the workers union to resuscitate the company by getting a committee constituted for management was repelled by a Division Bench of the High Court and this Court when the SLP filed by the workers Union came to be dismissed on 05.12.1997, it would no doubt be ironical and unjust to get order for the sale of the assets of the company as a going concern. But, at the same time to give a last try to the fond hopes expressed on behalf of the erstwhile workers, we consider giving one more chance to have it so done within a strict frame of time limit. After considering submission of the learned counsel for the parties, we are granting this indulgence, by permitting the sale of the company as a going concern with certain conditions only. The Official Liquidator for this purpose shall advertise the sale of the company in liquidation-judgment debtor as a going concern as ordered by the High C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the claim of the said applicant and further selling the moveable property of the Company at Rishra and to pay the applicant s dues after assessment of their claim. Ultimately, the aforesaid two applications came for hearing before this Court on 20th April, 2011 and 6th June, 2011. On 20th April, 2011 this Court directed the Official Liquidator to sale all assets of the Company including plant and machinery and other moveable assets as well as the land in question at a maximum price after getting the valuation done by the valuer appointed by them. The Official Liquidator was directed to get the valuation report and after getting the valuation report he was directed to take inspection of the assets and thereafter to publish advertisement in the newspapers inviting tenders in a shield cover from the intending purchaser for sale the assets on as is whereas basis . The Official Liquidator was also directed to give inspection of the goods both moveable and immovable property in question to the intending purchasers and thereafter the matter was directed to be placed before the Court on 5th June, 2011 at 2pm for holding auction in open Court. On 6th June, 2011, since the formality w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om fixing any other date for such deposit or extending such time even if such time has expired on such Terms and Conditions as the Hon ble Court may deem fit and proper. The successful purchaser shall have to take delivery/possession of the goods/articles properties sold within 15 days from the date of payment of full purchase consideration or any other time fixed by the Hon ble Court. Upon failure, unless otherwise ordered by the Hon ble Court, the sale in favour of the purchaser shall stand cancelled and all sums paid on account of the same shall stand forfeited without any further reference to the purchaser. No claim in respect of the same shall be entertained thereafter. On 7th July, 2011 valuation report was produced before the Court in a shield cover and the Court took note of the valuation report. The valuation report was kept under shield cover. However, the offers made by the intending purchasers were not acceptable and the Court wanted to hold auction again in open Court. Ultimately, on 15th July, 2011 the applicant Gourinandan Real Estate Private Limited offered 26 crores which was accepted by the Court and the sale was confirmed in favour of said Gourinandan Real ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No.1189/SDSR dated 12th July, 2005 and 1284/SDSR dated 29th July, 2005 were issued under Section 6(3) read with Section 57 of West Bengal Estate Acquisition Act, 1953 by the Sub-Divisional Land and Land Reforms Officer, Serampore, Hooghly for an alleged enquiry. The Official Liquidator in response to the aforesaid letters replied to the following effect:- I am directed to refer to you Notice No.1284/SDSR dated 29.07.2005 on the above subject and to say that the aforesaid Company was directed to be wound up vide Hon ble High Court order dated 4th June, 1990 and the Official Liquidator was appointed Liquidator thereof. In terms of the provisions of the Section 456 of the Companies Act, 1956 wherein winding up order has been made the Official Liquidator shall take into his custody or under his control all the properties to which the company is entitled. Further all the properties and the effects of the Company shall be deemed to be. I the custody of the Hon ble Court as from the date of the order of the winding up of the Company. In view of the aforesaid statutory provisions you are requested not to proceed in the matter without the leave of the Hon ble High Court, Calcutta. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... land vide this office notice No.1189/SDSR Dt.12.07.2005 (copy closed). 4. Till date the said enquiry has not been completed for want of co-operation from the part of the Liquidator. Upon completion of affidavits on the aforementioned application matter was heard and different learned lawyers submitted on behalf of the purchasers and questioned the marketability of the land in question. Mr. Mukherjee, learned Counsel appearing for the purchaser submitted that the properties of the Company (in liquidation) is affected by the provisions Section 6(1)(g) and Section 6(3) of the Estate Acquisition Act, 1953 and the State proposes to resume the land in view of closure of the factory. Mr. Mukherjee, submitted the judgment of the Hon ble Supreme Court reported in 2009 (4) SCC 453 (State of West Bengal Vs. Ratnagiri Engineering Pvt. Ltd.) appears to be affected by the subsequent introduction of the explanation under Section 6(3) of the Estate Acquisition Act. Mr. Mukherjee, argued that Section 4(1) of the Land Reforms Act confers ownership on the raiyat but the explanation under Section 4(1) introduced with effect from 7th August, 1969 makes Sub-section 4(1) in applicable to a raiyat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court issued direction for production of land records and the notification and/or conditions if at all there be any but the State respondents including the said Sub-Divisional Land and Land Reforms Officer, Serampore could not produce any scrap of paper. He submits the impugned letters were vague and without any substance. Simply because two provisions under the Estate Acquisition Act, 1953 was mentioned, there is no scope on the part of the auction purchaser to question the marketability of the land in question. He submits that since long before the order of winding up is passed, no factory is there. He further submits that on 20th September, 2000 when the order was passed by the Hon ble Supreme Court for selling the property in question, there was no such proceedings before any of the authorities. He submits that the judgment delivered by the Hon ble Supreme Court in case of Ratnagiri Engineering Pvt. Ltd. (Supra) is clearly applicable. He submits that under Paragraph 25 of the aforesaid judgment of the Hon ble Supreme Court have decided as follows:- In view of the above, while we do not agree with the view taken by the High Court in the impugned judgment, we also hold that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Counsel that the records allowing such retention under Section 6(3) of West Bengal Estate Acquisition Act after assessing the requirement for the purpose of running of the said factory was never produced before this Hon ble Court. He submitted that mere issuance of the impugned letters by the SDLLRO, Serampore by referring two provisions of the West Bengal Estate Acquisition Act cannot create any embargo on the marketability of the land. The State Government specially the SDLLRO could not produce any record relating to the matter to justify their claim over and in respect of the land in question in spite of several opportunities granted by this Court. They also failed to produce the land records (showing the status of the land) on the date of the alleged vesting. It was submitted that the definition of the word factory abundantly makes it clear that the word referred under Section 6(1)(g) and Section 6(3) of the West Bengal Estate Acquisition Act must be running factory on the date of vesting. And the word factory of the aforementioned Act cannot be equated with the state of a pre-existing factory. If the factory is not in operation/closed, a structure of it could be covered unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the property in question and lastly this Court have passed an order for selling the property as per the Hon ble Supreme Court direction and on that basis paper publication was made and it was clearly mentioned that the property would be sold as is whereas basis . The applicants being satisfied about the marketability of the property offered highest price and paid an amount of Rs.6.52 crores and the balance amount of Rs.19.48 crores were to be deposited within the time stipulated but, the balance money was not deposited, rather the present application is filed on the ground of issuance of two letters by the SDLLRO, Serampore as mentioned hereinabove. The two letters were issued by the SDLLRO, Serampore, Hooghly, mentioning Section 6(3) read with Section 57 of the West Bengal Estate Acquisition Act for holding an alleged enquiry although there is no proceedings pending before the said Sub-Divisional Land and Land Reforms Officer, Serampore as admitted by him. The Official Liquidator replied to the said notice stating therein that the properties/assets of the Company is under the custody of the Hon ble Court from the date of winding up of the Company. He also requested the SDLLRO not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bt as regards the marketability of the land in question. The impugned notice for holding the alleged survey for utilisation in the year 2005 is of no consequence when the mill/factory was not in operation since long before the winding up in 1990 and an order for sale was passed on 26th September, 2000 by Hon ble Apex Court and the matter reached its finality. Therefore, the purported notices are of no merit in the eye of law. In my view the explanation which was added sometimes in the year 2010 has no nexus with the aforementioned two notices issued in the year 2005. Further there is no factory on the lands in question since long long back before the winding up and as such it cannot be a factory land now. Therefore, by virtue of added explanation of 2010 the State Government also cannot raise any question as regards utilisation of lands, holding it as factory land. The explanation added in 2010 cannot override the provisions under Section 6(3) of the Estate Acquisition Act. There is nothing in record to show that the land in question was beyond ceiling limit either. Even if it is accepted, for the sake of argument, that there is an order under Section 6 (3) of the said Act in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Reforms Act nor those questions are involved in this matter. Although some submissions on the side of the applicant were advanced on the same but there is no specific ground in the application. The plea is without any substance and as such rejected. It is pertinent to point out if it was a question at all, in the mind of the applicant; the applicant had ample opportunity to get satisfied before participation in the bid. Now the applicant cannot raise such plea and create observation to sale the property. This conduct on the part of the applicant is highly improper. However, this application is pending before this Court since 17th August, 2011 but the applicant could not show anything that any proceedings is pending or order is passed in respect of the land in question under any land Act. Therefore, the doubt and/or apprehension of the auction purchaser is without any basis and/or substance. In my view there is no defect or any dispute about the marketability of the property in question which was sold in auction. However, the applicant is granted one week s time to pay the balance dues. In the event balance payment is made within a week from date the Official Liquidator is d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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