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TMI Blog2019 (2) TMI 968X X X X Extracts X X X X X X X X Extracts X X X X ..... em to take up and complete the balance work, this will be in the nature of advance payment and therefore requested that ONGC may be permitted to charge interest in accordance with its prevailing policy and adjust the same towards the final amount payable to the vendors or the company in liquidation. While considering the aforesaid objection, the learned Company Judge observed that, the payment is directed to be made by ONGC as part of its past dues and not as an advance payment. The learned company Judge, therefore, specifically observed that there is no question of ONGC charging any interest towards amount paid under the orders of this Court. There is no merit in the Appeal challenging order dated 26th April, 2018. The Appeal is, therefore, dismissed. - APPEAL (L) NO. 497 OF 2018 WITH NOTICE OF MOTION (L) NO. 1186 OF 2018 AND NOTICE OF MOTION (L) NO. 1187 OF 2018 IN COMPANY APPLICATION NO. 261 OF 2018 IN COMPANY PETITION NO. 756 OF 2014 - - - Dated:- 6-12-2018 - B.R. Gavai, And Riyaz I. Chagla, JJ. For the Applicant : Mr. S.U. Kamdar, Senior Counsel with Mr. S.P. Bharti For the Respondent : Mr. Bhalchandra Palav with Ms. Shreya Jha I/b M/s. Cyril Amarchand Mangalda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s time to communicate the exact position of outstanding claims found due in favour of the sub-contractors engaged by the Company in liquidation, for the ONGC contract. The learned Company Judge had issued various directions to all the parties including ONGC to communicate to the Court, the exact amount of outstanding payable by the Company in liquidation towards the pending project. The information was also directed to be communicated to the Official Liquidator beforehand, so as to enable the liquidator to take appropriate instructions and formulate his response. This Court also observed that on the next date, it would consider as to whether the balance work of the contract can be assigned either to the sub-contractors or any other outside agencies that may be identified by Respondent No.2 ONGC. 6. The matter was again listed before the learned Company Judge on 26th April, 2018. The learned Company Judge in his order passed on the said date observed that under the orders passed by the Company Judge from time to time, the parties including Respondent No.2 ONGC , the official liquidator and the sub-contractors engaged by the Company in liquidation for the contract work, as wel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4,440/- plus the project management cost of ₹ 91,50,000/-. 10. Paragraph 4 of the order passed by the learned Company Judge would reveal that though the learned counsel appearing on behalf of the Respondent No.2 ONGC was in broad agreement with the proposal, but had expressed apprehension that since amounts have to be paid to the various vendors with a view to enable them to take up and complete the balance work, this will be in the nature of advance payment and therefore requested that ONGC may be permitted to charge interest in accordance with its prevailing policy and adjust the same towards the final amount payable to the vendors or the company in liquidation. While considering the aforesaid objection, the learned Company Judge observed that, the payment is directed to be made by ONGC as part of its past dues and not as an advance payment. The learned company Judge, therefore, specifically observed that there is no question of ONGC charging any interest towards amount paid under the orders of this Court. 11. In this premises and taking into consideration the positive response of all stakeholders including ONGC, to the arrangement proposed, the learned Company Judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, gives an undertaking to the Court that the entire balance work, subject to ONGC honouring payments in accordance with this order, shall be completed within a period of six months from today; (vii) It is made clear that these orders shall be construed as special directions of the Court under Section 537 of the Companies Act, 1956; (viii) Company Application is disposed of accordingly. 12. It appears that subsequent to the orders passed by the learned Company Judge, a series of correspondence was exchanged between Mathews on one hand and ONGC on the other hand. However, it appears that the amount which was to be paid pursuant to the order dated 26th April, 2018, was not paid to the said Mathews. Therefore, Mathews filed Company Application (L) No. 598 of 2018. The learned Company Judge (Justice K.R. Shriram) vide order dated 29th October, 2018 directed ONGC to deposit ₹ 30 Crores with the Prothonotary and Senior Master of this Court on or before 5th November, 2018. After the said order was passed by the learned Company Judge on 29th October, 2018, the Appellant ONGC filed two Appeals. The Appeal No. 496 of 2018 is filed challenging the order passed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re asked Mr. Jain appearing on behalf of the Mathews, as to whether the said Mathews was willing to file an undertaking that it will complete the work within a period of six months as directed by the learned Company Judge in his order dated 26th April, 2018, and also an undertaking that in the event the work was not completed in the six months, he would refund the amount to the ONGC. We had therefore adjourned the matter to the next day so as to enable Mr. Kamdar to take instructions from ONGC as to whether it was willing to accept the order dated 26th April, 2018 and Mr. Jain as to whether Mathews was willing to file an undertaking as aforesaid. We had also made it clear that, in event the ONGC accepts order dated 26th April, 2018, we would set aside the order passed by the learned Company Judge on 29th October, 2018. 15. When the matter was listed on 30th November, 2018, Shri Kamdar submitted that prima facie the ONGC was inclined to accept the suggestions of the Court and accept the order dated 26th April, 2018. He submitted that, however, a final call will have to be taken from the higher authorities, who are in Delhi and therefore, some time is required for the same. He the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for a period of six months the ONGC had not made any payment as per the directions issued by this Court, he filed the Company Application (L) No. 598 of 2018, wherein the learned Company Judge passed the order on 29th October, 2018 directing to deposit an amount of ₹ 30 Crores. 18. It appears that at that point of time the ONGC woke up from deep slumber and decided to challenge the order dated 29th October, 2018 as well as the order dated 26th April, 2018. We fail to appreciate the submission made by Shri Kamdar that after the passing of the order dated 26th April, 2018, the Respondent ONGC found that the amount as directed was not due and payable. The perusal of the order dated 26th April, 2018 would reveal that as a matter of fact ONGC had broadly accepted the arrangement as is directed by the learned Company Judge not only that but in pursuance to the order dated 26th April, 2018, the ONGC has also acted upon the same as is evident from the correspondence exchanged between Mathews and the ONGC. Even prior to order dated 26th April, 2018, the matter was heard on various dates. The liquidator has also conducted various meetings and at no point of time, the ONGC raised a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No.1, Respondent No.1 shall deposit the aforesaid amount in this Hon'ble Court. 4. The Appellants will co-ordinate with Respondent No.1 in completion of the balance project under the contract between Respondent No.2 Company and the Appellant. 21. We are of the considered view that the said undertaking filed by Shri Mada on behalf of Mathews sufficiently takes care of interest of ONGC as well as other stake holders. In that view of the matter, we do not find any merit in the Appeal challenging order dated 26th April, 2018. The Appeal is, therefore, dismissed. 22. The learned Company Judge as well as learned Official Liquidator to take steps in accordance with the order passed by the learned Company Judge dated 26th April, 2018 including the disbursements of payments to Mathews, within a period of one week from today. 23. At this stage Shri Kamdar on behalf of the Respondent ONGC prays for stay of the order passed by this Court. Taking into consideration, the conduct of the ONGC which is a 'State' within the meaning of Article 12 of the Constitution of India, the said prayer is rejected. 24. In view of the dismissal of the Appeal, both Notices of Moti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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