9911796707
TMI Blog2012 (12) TMI 473X X X X Extracts X X X X X X X X Extracts X X X X ..... we restore rupees seventy lacs as on January 11, 2010 being the date of the order when Official Liquidator was asked to refund the said sum together with reasonable interest for the period when Official Liquidator was out of pocket to the extent of rupees seventy lacs we feel, it would meet ends of justice. Hence, the sum of rupees thirty-seven lacs that was paid by Siddheswari should attract interest at the rate of six per cent per annum on and from January 11, 2010 till the date of payment of the said sum to the Official Liquidator. The balance sum of rupees thirty-three lacs would also carry interest at the same rate on the reducing balance on and from January 11, 2010 till the respective dates of payment. - A.P.O. No. 366 of 2012 And A.P.O. No. 391 of 2012 BIFR No. 259 of 1992 - - - Dated:- 4-12-2012 - ASHIM KUMAR BANERJEE, AND SHUKLA KABIR (SINHA), JJ. For the Appellant: Mr. Ratnanko Banerjee, Advocate in APO No. 366 of 2012 Mr. Aniruddha Mitra, Advocate Mr. Imran Tarafdar, Advocate For the Appellants: Mr. Subhankar Nag, Advocate in APO No. 391 of 2012 Mr. Satadip Bhattacharya, Advocate For the Respondent no.2-25 : Mr. Dhruba Ghosh, Advocate in APO No.366 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a) (b) of the partition. The O.L. shall take steps to hand over possession within a period of 4 weeks from date. All parties to act on a signed copy of the minutes of this order on usual undertaking. Several orders were passed directing settlement of claim of the workers followed by direction for disbursement. On September 28, 2005 after about one year of sale Siddheswari filed an application for a direction upon Official Liquidator to identify and demarcate the land in question. Several orders were passed. However, despite attempts it could not be implemented. There were rival acquisitions. We do not wish to go into this question on this stage. After about two years of sale, Bharat Metal, for the first time, raised an issue that they could not get possession of the total land that was purchased by them being 11.73 acres. Several orders were passed from time to time. By an order dated January 11, 2010 the learned Company Judge set aside the sale of the land in question and directed the Official Liquidator to apportion the value of the land followed by a direction to refund of the said sum to Bharat Metal. Accordingly, a sum of rupees seventy lakhs was refunded to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dship assigned reasons in support of such exceptional mode of sale. Another learned single Judge taking advantage of the change of determination could not have recalled and/or set aside the sale being a Court of co-ordinate jurisdiction. Elaborating his argument, Mr. Banerjee further contended, neither the secured creditors nor the workers made any contemporaneous grievance on the sale being conducted in favour of Siddheswari, even the secured creditors did not come forward to support the workers cause. Hence, the learned Judge should not have upset the sale that too, after a considerable period when Siddheswari already spent huge sums in putting the unit in operation. According to Mr. Banerjee, the order was already acted upon. The Official Liquidator executed Conveyance. The purchaser altered their position by investing sums. Hence, the order of recall at a belated stage was liable to be set aside. He relied on the affidavit of Siddheswari giving details of expenses incurred by them subsequent to conclusion of sale. Despite best efforts the Official Liquidator could not demarcate the land belonging to the company in liquidation. Unless and until the land was demarcated th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... auction rather than to sell the assets by private treaty that would pre-empt the Official Liquidator to go for a best possible price. Commenting on their conduct as suggested by Mr. Banerjee, Mr. Ghosh contended, the workers were insisting on disbursement of their claim that would not preclude them to insist the Official Liquidator to go for a best possible price rather than to sell it by private treaty that would foreclose their opportunity to recover their dues to a substantial extent. Appearing for the Official Liquidator, Mr. Debangshu Basak, learned counsel commented on the supplementary affidavit and its contents including the photographs annexed thereto. According to Mr. Basak, the attempt of Siddheswari to give a different picture of the land in question was far from truth. The land was easily accessible and it was very close to the High Way. He also relied upon the decision in the case of Divya Manufacturing Company (P) Ltd. (supra). In addition he referred to the decision of the Apex Court in the case of FCS Software Solutions Ltd. Vs. LA Medical Devices Ltd. Ors. reported in 2008 Volume-X Supreme Court Cases page-440 wherein the Apex Court discussed the necessit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the control of Siddheswari when Siddheswari did not have a demarcated area. Anantapur also did not have a demarcated area as on the date of liquidation. Mr. Basak strenuously contended, it was specifically done. Such contention, Mr. Banerjee confronted. We do not wish to go into that question in detail. A property was sold to the appellant pursuant to an order of Court. The learned Single Judge passed the order of sale on January 17, 2011. The Official Liquidator executed the Deed of Conveyance on March 30, 2011. There were subsequent orders of the Division Bench for disbursement of sale proceeds. The workers prayed for recall after about eight months. The workers did not object to the sale to be held by private treaty. They were insisting upon their payment. Mr. Ghosh s contention that he had locus standi, is correct. However, we cannot brush aside the fact, the purchaser altered their position by investing sums after conclusion of sale. Even if we ignore the investments made by the purchaser the stamp duty paid on the Deed of Conveyance admittedly by the purchaser, was also a substantial sum that could be avoided in case there was any contemporaneous objection. Neither th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er. It would however, not per se make the order impugned illegal. We would rather call it argue. We would rather so it irregular. We would say, it could have been avoided. It would have been nice if the learned Judge directed advertisement to be published for inviting offers from intending bidders and then give opportunity to Siddheswari to match the offer of the highest bidder to retain the contiguous plot. The learned Judge, while passing the order dated January 17, 2011, did not adopt such mode. His Lordship relied on their assertion that the company in liquidation did have a lesser area of land and sold it by private treaty relying on the valuer s report. Such exercise was certainly irregular. However, it was not illegal so as to undo the process as it would amount to grave injustice and would cause immense prejudice to Siddheswari who should not suffer for act of Court. If we go by the strict letters of law, we would have to accept the submissions of Mr. Banerjee and allow his application by setting aside the order for recall. However, our conscience would prick confirming the sale at Rs.37 lacs. Being the Court of Appeal we are competent to modify the original order ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
