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TMI Blog2019 (11) TMI 732X X X X Extracts X X X X X X X X Extracts X X X X ..... ), approached the Courts in Mumbai and in Surat, where the various assets of the Company are situated and obtained orders/decrees from the Courts, which forms the underlying basis on which the tenants are claiming protection and have obstructed the Official Liquidator from taking possession of the assets of the Company in liquidation. It is an admitted fact that the properties are the assets of the Company in liquidation. Hence, under the scheme and the provisions of the Companies Act, 1956, this Court is required to protect the assets of the Company in order to not defeat the rights of the workers and the creditors of the Company. The record reveals a shocking state of affairs, which supports the stand of the Official Liquidator of the collusion and fraud on part of the ex-directors of the Company and the tenants. The relationship between the ex-directors of the Company and the directors/partners of the tenants is not in dispute - it can be hardly contended by the tenants that the orders/decrees were not collusive and/or that no fraud was played by the tenants and the ex-directors of the Company on the Courts in Mumbai and Surat. The orders/decrees passed by the Courts in fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. The Official Liquidator's Report has been filed on the basis that the ex-directors of the Company in Liquidation have colluded with the partners/directors of the alleged tenants namely M/s. Bhavik Gems ('Bhavik Gems'), J.B. Jewellery Pvt. Ltd. ('J.B. Jewellery), Riya Diamond Pvt. Ltd. ('Riya Diamond') and M/s. Meer Gems ('Meer Gems') ( the tenants ), and have obtained collusive orders/decrees to not disturb their possession by playing fraud on the Court of Small Causes at Bombay, the 15th Additional Civil Judge Court at Surat and the Small Causes Court at Surat ( the Courts ). All the decrees have been obtained from the Courts after the date of the winding up order, i.e., 19th June, 2012 and no leave under section 446 of the Companies Act, 1956, have been obtained by the alleged tenants/Plaintiffs in the R.A.D. Suits from this Court. In fact, even today, no such application for seeking leave under section 446 has been filed by the tenants/Plaintiffs/alleged decree holders. 3. The relevant facts giving rise to the above report are briefly set out hereunder: 4. The Company was ordered to be wound up by this Court vide Order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4(a) to (h)) refused to handover possession on the ground that they have obtained orders/decrees from the Small Causes Courts restraining the Company from disturbing their possession. 6. The details of the decrees passed by the Courts are briefly set out as under: a. Order dated 2nd September, 2013, passed by the Court of Small Causes at Mumbai in R.A.D. Suit No.1417 of 2011 in the case of Bhavik Gems v. J.B. Diamonds Limited, in respect of Office Premises at 6B Unity House, 3rd floor, Prasad Chambers, Opera House, Mumbai-400 004; b. Order dated 25th January, 2016, passed by the Court of Small Causes at Mumbai in R.A.D. Suit No.1343 of 2011 in the case of Bhavik Gems v. J.B. Diamonds Limited, in respect of Office Premises at Unit No.406, 4th floor, Prasad Chambers, Opera House, Mumbai-400 004; c. Order dated 2nd September, 2013, passed by the Court of Small Causes at Mumbai in R.A.D. Suit No.1416 of 2011 in the case of J.B. Jewellery Pvt. Ltd. v. J.B. Diamonds Limited, in respect of Office Premises at Unit No.418, 4th floor, Prasad Chambers, Opera House, Mumbai-400 004; d. Order dated 9th May, 2017, passed by the 15th Additional S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... q. ft. was merged into Unit No. 406 at Prasad Chambers, Opera House. 8. The tenants on 23rd June, 2018, refused to handover possession of the properties belonging to the Company (In Liquidation), and accordingly, the Official Liquidator took symbolic possession of the following properties belonging to the Company (In Liquidation) situated at Surat: a. FP No. 12, Patel Nagar, Ashwanikumar Road, TP Scheme No.4, Surat, which was in possession of Riya Diamonds; b. Factory Building, 248-249, Lambe Hanuman Road, Near Railway Station, RS No. 46/A/2 Paikee TP Scheme No.4, FP Nos.249-A 248, Surat City, Ward, Navagam, Surat, which was also found to be in possession of Riya Diamonds; c. Factory Building, 248-249, Lambe Hanuman Road, Near Railway Station, RS No. 46/A/2 Paikee TP Scheme No.4, FP No.249-A 248, Surat City, Ward, Navagam, Surat, which was in possession of Bhavik Gems; d. Factory Building, Plot Nos.147 to 151, Pandoi Industrial Estatem Ved Road, Surat. RS No. 9 10/1, Moje: Tunki, Tal: Choryasi, Dist: Surat, which was in possession of Meer Gems; and e. Factory Building, Plot Nos.21, 22, Nehru Nagar, Lambe Hanuman ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey shall not transfer their tenancy rights in favour of any party until further orders of this Court. 13. By Orders dated 19th December, 2018 and 21st December, 2018, the tenants had also given an undertaking to produce (i) income tax returns from the year which they claim to be a tenant in respect of the premises, (ii) all statutory records where address of the premises is shown, of which they allegedly claim to be in possession and (iii) the rent receipts issued by the said Company to the tenants in respect of the premises. 14. Accordingly, the tenants have filed their respective affidavits producing certain records. The record placed before me by the Official Liquidator and the tenants reveal that: a. The ex-directors of the Company, save and except for Mr. Jivrajbhai Surani, are the Directors of J.B. Jewellery Pvt. Ltd., who allegedly claim to be a tenant of office premises at 418, 4th Floor, Prasad Chamber, Opera House, Mumbai - 400 004; b. The ex-directors of the Company namely Mr. Sureshbhai Kukadiya, Mr. Rajeshbhai Surani, and Mr. Virjibhai Kukadiya, are also partners of Bhavik Gems, who allegedly claim to be in possession of premises ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the Company chose not to raise any substantial defence/lead any evidence/produce any documents to controvert the case of the tenants. This is evident from a bare perusal of the Orders dated 2nd September, 2013, and 25th January, 2016 passed by the Court of Small Causes at Mumbai. 17. Before the Courts at Surat, the right of the Company (In Liquidation) to file a reply were closed by the Courts. In fact on 2nd September, 2012, when an application for interim reliefs filed on behalf of one of the tenant, was kept for hearing, before the Court of Small Causes at Surat, none appeared on behalf of the Company and the Small Causes Court at Surat, was compelled to proceed ex parte against the Company and the application for interim reliefs filed by tenant was allowed. 18. It is in these circumstances, the Official Liquidator filed the present report before this Court on 1st February, 2019. Before dealing with the arguments canvassed before me, I shall first refer to and deal with the Affidavits dated 12th February, 2019, filed by the tenants pursuant to the Orders dated 19th December, 2018 and 21st December, 2018, passed by this Court: Bhavik Gems: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting Bhavik Gems before this Court. Bhavik Gems has not produced any rent receipts for Office Premises at 6B, Unit House, Opera House and/or for the factory premises at Surat. In paragraph 13 of the Affidavit, a statement has been made that a sum of ₹ 6,00,000/- and ₹ 4,00,000/- has been paid by Bhavik Gems to the Company in advance for use of the factory premises at Surat for 30 years. However, no proof of payment has been produced by Bhavik Gems before this Court. d. Bhavik Gems has produced IT Returns from AYs. 1995-96 till 2010-11 which reflects the address of Office Premises at 405. Apart from producing some certificates of registration and professional tax receipts issued by the Surat Municipal Corporation, Bhavik Gems has also produced a registration certificate dated 23rd June 2005 of establishment issued by Surat Municipal Corporation, which registration certificate bears a different address altogether. J.B. Jewellery: e. J.B. Jewellery has filed an Affidavit of Mr. Bhagwanbhai Kukadia dated 12th February, 2019. All the ex-directors of the Company in liquidation except Mr. Virjibhai Kukadiya are the directors of J.B. Jewellery ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the premises after the expiry of the agreement dated 1st April, 2010. j. Even otherwise, the agreements contradict the case of Riya Diamond. The Affidavit discloses that Riya Diamond was carrying on its business from the premises since the year 2007. This is because Riya Diamond has produced income tax returns for AYs. 2008-09, 2009-10, 2010-11, 2011-12, 2012-13, 2013-14, 2014-15, 2015-16, 2016-17, 2017-18. Apart from not having produced the Income Tax Returns for AY- 2007-2008; it is Riya Diamond's own case in the Affidavit that the agreement dated 1st April, 2010, was valid till 13th August, 2014. This then raises the serious doubt or question as to on what basis did Riya Diamond show this address in its Income Tax Returns of 2015-16, 2016-17, 2017-18. This question remains unanswered/unexplained. Even otherwise, Riya Diamond has not produced any rent receipts. k. In view of the above, no other statutory document such as the certificate of registration dated 26th February, 2007, issued under GVAT 2003; license dated 1st January, 2008 issued by Directorate Industrial Safety and Health, Gujarat; professional tax receipts dated 12th October, 2010, issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tage and in any proceedings, even in collateral one. In fact, in Forbes and Company (supra), this Court had declared the consent decree as illegal and void as a fraudulent preference. b. This Court in the case of Forbes and Company (supra) in paragraphs 26(d) and 26(f) has held as under: (d) The Consent Decree in question, which has been procured by fraud can be set aside at any stage including in an application for leave to execute it or in an Official Liquidator's Report challenging it . (f) In fact the judgment of the Division Bench of this Hon'ble Court in The Official Liquidator, High Court Bombay and the Liquidator of Kamani Brothers Private Limited (In Liquidation) v. Suryakant Natvarlal Surati relied upon by applicant itself is authority for the proposition that the Company Court may set aside or refuse to enforce a Decree..... c. The judgment of Forbes and Company (supra) has been confirmed by the Division Bench of this Court vide its judgement in Forbes Company Ltd. v. Board For Industrial And Financial Reconstruction (B.I.F.R). The Division Bench of this Court in paragraph 12 of the judgment has held as under: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore, the decrees passed by the Courts are a nullity and have been passed without jurisdiction; and the Courts could not have taken up the cause or the matter in respect of the Company-in-liquidation in absence of leave under Section 446 of the Companies Act, 1956 and hence, any order passed by a Court having no jurisdiction over the subject matter, is a nullity. i. The above position in law is supported by the judgment of the Supreme Court of India in the case of Chief Engineer, Hydel Project v. Ravinder Nath [2008] 2 SCC 350. The Supreme Court in Hydel Project (supra) had relied upon its judgment in Harshad Chiman Lal Modi v. DLF Universal Ltd. [2005] 7 SCC 791 , more particularly paragraph 30 thereof, in which the question of jurisdiction was being decided by the Supreme Court and whilst deciding the same, the Supreme Court in Harshad Modi (supra) held as under: 30. We are unable to uphold the contention. The jurisdiction of a court may be classified into several categories. The important categories are (i) territorial or local jurisdiction; (ii) pecuniary jurisdiction; and (iii) jurisdiction over the subject-matter. So far as territorial and pecuniar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atter in controversy between parties to a suit and to adjudicate or exercise any judicial power over them; the power to hear, determine and pronounce judgment on the issues before the Court, ''the power or authority which is conferred upon a Court by the Legislature to hear and determine causes between parties and to carry the judgments into effect , the power to enquire into the facts, to apply the law, to pronounce the judgment and to carry it into execution , Reference may in this connection be made to the discussion of the nature of jurisdiction in the judgments of this Court in Ashutosh Sikdar v. Behari Lal MANU/WB/0158/1907 : 11 CW.N. 1011 : 6 CL.J. 320 : 35 C 61 (F.B.) and Gurdeo Singh v. Chandrika Singh 1 Ind. Cas. 913 : 36 C 193 : 5 CL.J. 611. This jurisdiction of the Court may be qualified or restricted by a variety of circumstances. Thus, the jurisdiction may have to be considered with reference to place, value, and nature of the subject matter. The power of a tribunal maybe exercised within defined territorial-limits. Its cognizance maybe restricted to subject-matters of prescribed value. It maybe competent to deal with controversies of a specified characte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Similarly, in case where a suit is fled on two causes of action namely one for infringement and another one for passing of before the Court, and no leave under Clause XIV of the Letters Patent is obtained by the Plaintiff for joinder of several causes of action, any order/decree passed by the court in that suit would be a nullity and therefore invalid. o. In the event the purported tenants would have applied for leave under Section 446 of the Companies Act, 1956, this Court would have had the opportunity to examine the reason for seeking such a leave to prosecute suits against the Company (in liquidation) and this Court would have dealt with the collusion and fraud, which are writ large, and would have directed the proceedings to be heard before it. Intentionally, the ex-directors of the company (in liquidation) did not file/apply for any leave under Section 446 and are at this stage attempting to obstruct the Official Liquidator from taking custody of the properties of the company. p. This Court cannot lose sight of the fact that the decrees which have been obtained by the purported tenants are in fact for the benefit and advantage of the ex-directors of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he tenants contended that: a. The absence of leave under Section 446 does not render the decree a nullity and that the same is not fatal to the decree obtained by the tenants from the various Courts. b. The Company Court has no jurisdiction to declare a decree passed by the small causes court as null, void and not binding, in view of the law laid down by a Division Bench of this Court in the case of Modella Woollens Ltd. v. Official Liquidator [2007] 79 SCL 172 , and more particularly paragraph 36 thereof, which reads as under: 36. In the light of the clear principle of law laid down in this decision we are of the view that the Company Court had no jurisdiction to declare, in the present case, that the decree passed by the Court of Small Causes was null, void and not binding on the applicant. Admittedly, the applicant had not instituted any proceedings against the company (in Liquidation). It had also no claim against the applicant which could be continued against the Official Liquidator. Nor was a prayer made to transfer any pending proceeding by or against the company (in liquidation). Additionally, as noted above, it is the applicant which has a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds jurisdiction have been recorded and the same are substantially different than the arguments canvassed by the Official Liquidator before this Court. 23. Mr. Jagtiani argued that the contentions raised on behalf of the Applicant in Modella Woollens (supra) was that (i) for the Small Causes Court to have jurisdiction to go into the Plaint, it was necessary that the second respondent (in that case) proves that license fees or a charge was paid in respect of the subject premises and that there was a subsisting license and (ii) by virtue of Section 15 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, the Small Causes Court had no jurisdiction and competence and therefore the decree was in nullity not binding upon the Applicant. It is in the aforesaid circumstances, the powers of the Company Court under Sections 446 and 536(2) of the Companies Act, 1956, were invoked to seek a declaration that the second respondent was a trespasser and that the decree is vitiated by fraud and therefore a nullity. It is in the facts of that case, the Division Bench of this Court in Modella Woollens (supra) held that the Company Court had no jurisdiction to take cognisance o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Courts are passed after the order of winding up was passed by this Court on 19th June, 2012. In view of the record and facts extensively dealt by me above, it can be hardly contended by the tenants that the orders/decrees were not collusive and/or that no fraud was played by the tenants and the ex-directors of the Company on the Courts in Mumbai and Surat. 28. The orders/decrees, referred to above, clearly show that the ex-director of the Company in liquidation Mr. Suresh Kukadia led evidence on behalf of the tenants before the Small Causes Court at Mumbai in the Suits filed by the tenants against the Company (in liquidation). It is relevant to refer to the observations made by the Small Causes Court at Mumbai in its judgment and order dated 2nd September, 2013, in R.A.D. Suit No.1417 of 2011, in the case of Bhavik Gems v. J.B. Diamonds: :REASONS: 5. The plaintiff has lead oral as well as documentary evidence in support of its contention. The plaintiff has examined P.W.1 Mr. Suresh Kukadia, its Director at Exh.21 and produced various documents viz. resolutions at Exh.23 and Exh.24, rent receipts at Exh.25 to Exh.34, letter dated 26 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgment of Forbes and Company (supra), more particularly paragraphs 26(d) and 26(f). I am in agreement with the view taken by the learned Single Judge of this Court in Forbes and Company (supra). As held by the Supreme Court of India in S.P. Chengalvaraya Naidu (supra), a judgment or decree obtained by playing fraud on the court is a nullity and non-est in the eyes of law and that such a judgment/decree, passed by the first court or the highest court', has to be treated as a nullity by every court, whether superior or inferior . Such judgments/decrees can be challenged in any court even in collateral proceedings. This position of law has been reiterated by this Court in Forbes and Company (supra). 31. Mr. Jagtiani for the Official Liquidator has contended that the orders/decrees passed by the Courts in favour of the tenants having been procured by fraud, ought not to be enforced or taken cognizance of, even as a defence to the Official Liquidator's Report by this Court and this Court must declare the orders/decrees as illegal and void. On the other hand, the Advocate for the tenants has not dealt with or even responded to the submissions made on behalf of the O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emises in question. By virtue of its character as public premises and the Public Premises Eviction Act prevailing over the Bombay Rent Act, the Court of Small Causes had no jurisdiction, authority and power to pass any decree in respect thereof. The further basis upon which the learned Judge proceeded is that the premises in question would be an asset and property of the company in liquidation and therefore, the Official Liquidator was bound in law to take possession thereof The third assumption on the part of the learned Judge is that the Court of Small Causes passed a decree in a collusive suit inasmuch as without any evidence of relationship of licensor and licensee and any threat of eviction a declaration of deemed tenancy came to be issued by it. This declaration could not have been issued since requirements stipulated by Section 15A of the Bombay Rent Act namely subsistence of licence and payment of licence fee or charge as on the relevant date have not been satisfied in the present case. 33. It is pertinent to note that company application has not been instituted by the Official Liquidator. He does not claim any declaration of the nature claimed by the applicant m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respect thereof. Therefore, whether such tenancy rights could have been taken over by the Liquidator is also not clear from the order of learned Single Judge. In fact, reliance placed by Mr. Madon in this behalf on the decision of Supreme Court in the case of Smt. Nirmala R. Bafna v. Khandesh Spinning and Weaving Mills Co. Ltd. is appropriate. The Hon'ble Supreme Court was considering somewhat similar controversy in that case. That matter was carried from an order passed by this very Court. The Hon'ble Supreme Court after noticing rival contentions has observed that:- a. The tenancy rights the company had in the said flat may not be an asset for the purpose of liquidation proceedings, and b. merely because a company goes in liquidation and a liquidator/official liquidator is appointed, the rights of the company vis-a-vis its landlord and/or its tenants do not undergo any change. [Emphasis Supplied] 33. I am also in agreement with the submission made by Mr. Jagtiani that the judgment of Indian Bank (supra), referred to in Modella Woollens (supra), also would not assist the case of the tenants since Indian Bank (supra) was a case where leave h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the event the tenants would have applied for leave under Section 446 of the Companies Act, 1956, this Court would have had the opportunity to examine the reason for seeking such a leave to prosecute suits against the Company in liquidation. The powers of a Company Court under Section 446 of the Act are not in dispute and are well settled and have been broadly construed by the Supreme Court in the case of Sundarsan Chits (I) Ltd. (supra). Since the suits filed by the tenants would constitute a claim filed against the Company in liquidation, under Section 446(2) of the Companies Act, this Court would have considered hearing the suits in order to advance the object of Section 446 of Companies Act. 38. Since I have already come to the conclusion that the orders/decrees obtained by the tenants from the Courts are collusive and fraudulent and without jurisdiction as no leave under Section 446 of the Companies Act was obtained, no post-facto leave under Section 446 of the Companies Act can otherwise validate the collusive orders/decrees obtained by the tenants and/or save them from being declared as illegal and void. The admitted fact that the ex-director of the Company in liqui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the said Act. We are informed that the total amount due is more than ₹ 200 crore. Amount due to the consortium banks is ₹ 1,000 crore, out of which 60% amount maybe adjusted, according to the Petitioners. Be that as it may, we are of the view that no case is made out for interference with the impugned order. All the writ petitions are, therefore, dismissed. Learned counsel submitted that proposal for payment of 60% amount was given under the OTS scheme. 12. At this stage, learned counsel appearing for the Petitioners seeks four weeks time to approach the Apex Court for the purpose of clarification of the order passed in the case of Harshad Govardhan Sondagar (supra). Taking into consideration the fact that Petitioners are the Directors, guarantors and also signatory to the loan documents, we are not inclined to continue the interim order. Hence, request for continuation of interim relief is declined. 41. Being aggrieved by the Order dated 8th April, 2015, the tenants and the ex-directors of the Company preferred Special Leave Petition Nos. 11758/2015, 11761/2015, 11764/2015 and 11762/2015 before the Supreme Court of India, which petitions came t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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