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TMI Blog2012 (12) TMI 710X X X X Extracts X X X X X X X X Extracts X X X X ..... otallity of the case, the Court finds that judgment and order dated 10.08.2005 deserves to be set aside, to the extent it imposed penalty /fine on the appellant-society of Rs. 2 lacs. It goes without saying that the other direction/s with regard to investigation in the matter stands - At the request of the learned Senior Advocate for the appellant-society, it is clarified that it will be open for the appellant-society to renew its request of extension of time before the learned Company Judge. - O.J. APPEAL NO. 38 OF 2005 - - - Dated:- 10-10-2012 - RAVI R. TRIPATHI AND N.V. ANJARIA, JJ. B.B. Naik for the Appellant. Ms. Amee Yajnik, D.S. Vasavada and J.V. Bhairavia for the Respondent. JUDGMENT Ravi R. Tripathi, J . - The present appeal is filed by Jubilee Mills Limited Employees' Cooperative Society Limited being aggrieved by judgment and order dated 10.08.2005 passed by the learned Company Judge in Company Application No. 219 of 2004. 2. Learned Senior Advocate Mr. B.B. Naik for the appellant-society invited attention of the Court to paras-1 and 2 of the judgment, which are reproduced for ready perusal: "1. The applicant, namely, Jubilee Mills Limi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lifted were lying in the premises of Mill compound situated at Chharanagar. Learned Senior Advocate for the appellant-society submitted that there are reports filed by the Official Liquidator and in one of the reports (dated 19.04.2005), it is specifically stated by the Official Liquidator in para-6 that:- "6. That however, this Honourable High Court may be pleased to observe that the premises or the portion belonging to Calico Mills was neither opened nor anything was delivered or allowed to remove therefrom. The deliveries were made specifically from the portion and premises of GDP Unit of Jubilee Mills situated at Chharanagar, Ahmedabad." (Emphasis supplied) 2.2 Learned Senior Advocate for the appellant-society submitted that there is word against word and therefore, the learned Company Judge ought not to have passed an order imposing penalty of Rs. 2 lacs in the application of the present appellant praying for extension of time. 2.3 Learned Senior Advocate for the appellant- society also invited attention of the Court to para-3 of the impugned judgment and order, which reads as under:- "3. The Textile Labour Association which is impleaded as one of the party - respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... type of affidavit can be made the basis for drawing an inference to the effect that the appellant has lifted goods which were not sold to the appellant, there will not be an end to such type of cases. As against that, there is a report filed by the Official Liquidator dated 19.04.2005, wherein it is specifically stated in para-3 as under: "3. That so far as the description of goods delivered as mentioned in Gate passes and the description of goods as mentioned in the inventory cum valuation report of Shri P. Matadar and the description of goods as mentioned on page 56 and 57 of the Statement of affairs are concerned, the Official Liquidator most respectfully submits that in the meeting of sale committee held on 4.7.2003 the offer for purchase of moveable items by the applicant society at a consideration of Rs.1,25,000/- was recommended by the Sale Committee. The Sale Committee recommended that offer with the understanding that the offer is for purchase of moveable items as listed in the inventory cum valuation report prepared by Shri Vinod P. Matadar on 13.12.2001. That later on the applicant society informed the Official Liquidator that its offer is not restricted to the items ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lying on an affidavit, which is found to be vague, a penalty imposed, stands test of legality. The matter which requires to be investigated must be investigated by the concerned authority and after the investigation, the matter must be taken to its logical end, but in this appeal, the Court is required to consider a limited question whether the order by which the learned Company Judge is pleased to impose penalty of Rs.2 lacs can be allowed to stand or is required to be quashed and set aside. 6.1 On careful consideration, the Court finds that merely on the basis of an affidavit filed by one person (Shri Jivanlal F. Parmar) and in absence of any other convincing material coming on record to establish that the appellant-society has lifted the goods more than the appellant was allowed to lift, such penalty count not have been imposed. 6.2 This Court finds substance in the submission of learned Senior Advocate for the appellant-society that the goods were lifted by following procedure of issuance of 'gate passes'. Learned Company Judge could have directed the Official Liquidator to undertake a detailed investigation of the said gate passes, wherein the goods taken out from the prem ..... X X X X Extracts X X X X X X X X Extracts X X X X
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