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TMI Blog2013 (1) TMI 642X X X X Extracts X X X X X X X X Extracts X X X X ..... aring for OL in the appeal was not approved by the Company Court - Whether judgment passed in appeal seeking scheme of revival of company-in-liquidation was to be reviewed or re called? Held that:- As out of the amount of Rs. 25,00,000, since the OL has already borne the expenses of Rs. 12,43,960 towards security expenses for preservation of property and amount of security expenses are already paid by the OL, the OL cannot be directed to refund the said amount. Further, after excluding the amount of security expenses already paid, net balance comes to Rs. 12,56,040. As against the same, the bills of security agencies deployed from 23-6-2003 to 20-3-2009 of Rs. 74,64,342 are pending, for which the matters are also pending before the Company Court and, hence, the order for refund of the amount of Rs. 12,56,040 does not deserve to be passed at this stage. But it is directed that the OL shall separately mark and maintain the fund of Rs. 12,56,040 and after the dispute with the security agencies towards the bill of Rs. 74,64,342 is finalized, the OL shall make use of the amount of Rs. 12,56,040, if required, and thereafter if any surplus balance remains, the same shall be refunded to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l No. 8 of 2009, whereby the appeal came to be dismissed as stated in the order. However, prayer in the present application has further been made by the applicant-original appellant to approve revival scheme moved by the applicant-appellant before the learned Company Judge. 4. It appears that the main judgement passed in OJ Appeal No. 8 of 2009 is also prayed to be reviewed. It would be proper to consider MCA No. 184 of 2011 and thereafter to consider MCA No.181 of 2011. Further, in order to appreciate the grounds for review, some factual background of the case may also be required and the same are as under:- 4.1 Two Directors (hereinafter referred to as the 'original petitioners - applicant herein') of Maradia Steel Limited (hereinafter referred to as 'the Company in liquidation') submitted the Scheme of Revival and compromise. The learned Single Judge, for the reasons recorded in the judgement dated 2.2.2009 passed in Company Petition No.275 of 2008, declined to sanction the Scheme of Compromise and dismissed the petition. The applicant herein preferred appeal before the Division Bench of this Court being OJ Appeal No.8 of 2009. The said appeal was admitted and interim order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... course of hearing of the review application, seeks permission to delete the statement made in paragraph (J) of the application, which is as under:- "(j) ... this Court is repeatedly singing only one song in different rags that there is no provision in the revival scheme for the statutory creditors. ..." 2. Mr. Mardia further seeks permission to delete the sentence from the very paragraph, which is as under:- " ... This Hon'ble Court has failed to appreciate ... ... ..... the statutory creditors for their consideration." 3. Mr. Mardia also seeks permission to delete paragraph (k) of the review application. 4. Permission granted. Aforesaid shall stand deleted from the review application. 5. It prima facie appears from the perusal of further grounds stated in the application that the language used by the applicant is contemptuous and it lowers down, the authority and dignity of this Court . At this stage, Mr. Mardia, Party-in-person appearing in the matter, states that he tenders unconditional apology and seeks leavel to delete the statements made in the grounds from (g) (Page 11) to the page No. 23, up to the prayer clause. 6. Before we further consider the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... On realizing this mistake, we sincerely apologized this Hon'ble Court and also unconditionally withdrawn our submissions from page nos.11 [paga-(g) of submissions on Ground No.1] to page no.23, up to the prayer clause, with a prayer to pardon us for the language used in the submissions made in support of the Grounds raised in this application. We pray that this Hon'ble Court be pleased to permit us to withdraw the said paragraphs of the said submissions and be pleased to order that the same may be deleted. 4. We deeply regret for the language we used in our Review Application. Should have made out submissions in a much better and polite way. We most humbly and respectfully submit that we had no intension to disrespect or undermine the judiciary or the Hon'ble Judges in any manner, and what happened was just an unintentional mistake from our end due to lack of our legal drafting knowledge. We deeply regret to this Hon'ble High Court. We are truly and sincerely sorry for having used undignified and indecent words in the averments in the said paragraphs of the said submissions for which we most humbly and respectfully tender our unreserved, unqualified and unconditional apology to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e amount is utilized towards the security bills, it can be said as the cost borne by the OL towards maintaining the property of the company in liquidation. If we go by strict arithmetical figure it can be said that out of the amount of Rs. 25,00,000/- the amount of Rs. 12,43,960/- as stated by the OL is the expense already borne by the OL and, therefore, the remaining balance available to the OL would come to Rs. 12,56,040/-. Under these circumstances, it appears from the report of the OL that the amount of Rs. 12,56,040/- is the clear balance available with the OL from the amount of Rs. 25,00,000/-, which was deposited by the applicant towards cost borne by the OL. However, from the details given at paragraph 5 of the said OL Report, it does appear that if the security expenses are to be considered till March 20, 2009 i.e. the period up to which the possession of the property was with the OL, the security agencies have raised the bill of Rs . 87,06,302/- , out of which the amount of Rs.12,43,960/- is already paid and, therefore, the amount of Rs. 74,64,342/- is yet to be finalized towards payment of security bills. Since that question is yet not finalized, it cannot be decided at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to face the proceedings under the Contempt of Courts Act for which serious view may also be taken by the Court. We leave the matter at that stage and find it proper to examine the merits further. 12. The merits may be required to be considered in a two-fold manner; one is for the ground stated against the judgement and order passed in O.J. Appeal on the aspects of alleged apparent error as sought to be canvassed by the party-in-person on the question of law or on appreciation of facts. The another is that the appropriation and/or refund amount of Rs. 25,00,000/-, since it was deposited pending the appeal pursuant to the interim order passed by this Court. On the former aspects, for the so-called error of appreciation of the facts and law as sought to be canvassed by the party-in-person, we find that all such grounds, even if considered, none is valid to recall and review the order or thereby to grant approval to the scheme of revival. 13. However, so far as latter aspect is concerned, since the amount of Rs. 25,00,000/- came to be deposited by the applicant pending the appeal pursuant to the observations made in the interim order, when this Court has finally decided the appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance for the alleged ulterior motive or collusion by Mr. Desai with the OL, since no material is produced to show that any undue benefits was to be derived by the OL. Be it noted that the appeal is not preferred by the OL, but is preferred by the applicant herein in capacity as Party-in-person against the order of the learned Company Judge. If any proceedings are initiated against the OL or the company in liquidation, it is bounden duty of the OL to defend the proceedings against the company in liquidation and also to safeguard the interest of the creditors, including the secured creditors, shareholders of the company in liquidation. Therefore, if any proceedings are initiated against the OL, the OL has to defend the proceedings. The proceedings can be defended in two ways; one would be that the OL himself may appear for the company in liquidation and may defend the proceedings of his own; or in alternative, he may engage any Advocate for defending the proceedings. If he wishes to defend the proceedings by engaging any Advocate, the expenses may be required to be incurred for payment of remuneration of the Advocate and, therefore, the permission of the Company Court may be required ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat there is typographical error in record the number of 'Civil Application No.54' is of '06', but it should have been 'Civil Application No.54/09', since, in any case, the appeal was of the year 2009 and, therefore, interim application could not be of an earlier period in the said OJ Appeal. Hence, correction deserves to be made at paragraph 7 and the number of Civil Application would be 'Civil Application No.54/09', in place of 'Civil Application No.54/06'. Hence, ordered accordingly. 19. Hence, Misc. Civil Application No.184 of 2011 deserves to be partly allowed to the aforesaid extent only. 20. We shall now consider OJ MCA No. 181 of 2011. Civil Application No.138 of 2009 was preferred by the applicant to recreate all assets and to fix the responsibilities of the responsible officer and to direct them to compensate the loss incurred to the Company in Liquidation during which the possession was held by the OL. It was also prayed to order and investigate by CBI or any other Agency or by a Retired Judge of this Court. The pertinent aspect is that the said Civil Application came to be preferred by the applicant - original appellant in capacity as the Appellant i.e. Ex-Director, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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