9911796707
TMI Blog2021 (4) TMI 653X X X X Extracts X X X X X X X X Extracts X X X X ..... re any court of law in civil jurisdiction to challenge the previous determination of lease of erstwhile lessees alleging illegalities, if there be any. Winding up order having passed against the proforma respondents, followed by submission of affidavit of report of debt before the Official Liquidator, in consequence of the proforma respondents/companies going into liquidation, the dues payable by the said companies (in liquidation) become a subject matter of Official Liquidator. Since, for and on behalf of the writ petitioners an affidavit of report of debt for creditors/writ petitioners has already been submitted before the Official Liquidator, the Court is of the view that there is hardly any scope to interpret the word existing liability of the erstwhile lessees/companies in its true context, contrary to the definition of Section 3 (10) (11) of the Insolvency and Bankruptcy Code, 2016, as proposed by either of the parties to this case, being an unnecessary academic exercise - The Court shares the same view, as proposed by the respondents, that it was a private dispute simply to recover money from the beneficiary tea garden company, already going into liquidation, and for su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies, including bank dues, workers dues, Provident Fund dues, statutory liabilities etc. for all the tea gardens, proposed to be handed over to respondent nos. 5, 6 7, upon execution of a fresh lease and submit a report along with an affidavit of declaration of clearance of dues payable to those tea gardens. Learned advocate Mr. Joyjit Choudhury, representing the writ petitioners referring two (2) such notifications submitted that for the non-fulfillment of the conditions, revealed in such notifications, as a prerequisites for granting fresh lease upon determination of the previous lease, that there had been inaction exposed on the part of the State/respondent nos. 1-4 in their deliberate attempt to execute fresh lease with respect to the four tea gardens in favour of the respondent nos. 5-7, upon determination of lease of erstwhile lessees, and referring such inaction, a writ of mandamus was proposed to be issued, commanding the State/respondents from staying the execution of a fresh lease deeds to the respondent nos. 5-7 without complying with the formalities, as mentioned therein in the Government notifications referred above. An interim order was granted in this case on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om Government end requiring assumption of existing liability of the tea gardens must be restricted to statutory liabilities. The company of the erstwhile lessee having gone into liquidation and following which the Official Liquidator being appointed for the purpose, before whom the writ petitioners had already submitted their affidavits of report of debt, the instant writ application would not be maintainable on the score that for the settlement of the dues in consequence of a private dispute, no mandamus should be allowed to be issued. More so, there had already been execution of the three (3) lease deeds in favour of respondent nos. 5-7 sufficiently well in advance before the interim order was granted in this case, Mr. Chatterjee contended. The status of the writ petitioners, according to respondent nos. 5-7 could at least be to that of unsecured creditors in respect of a loan transaction, admittedly entered into between the parties, and as such the private dispute would not be maintainable by initiating an action for the purpose of issuance of a mandamus. Mr. Bikramaditya Ghosh, learned advocate representing State/respondent nos. 1, 2, 3 4 candidly submitted that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tea Garden, and thereby advancing a stand for the State respondents that the new lessee shall be bound by the decision of C.P. No. 71 of 2009, read with C.P. No. 75 of 2009, now pending before the Hon ble High Court at Calcutta. The dispute involved being purely private in nature, intended for recovery of money, maintaining an action proposing issuance of mandamus to frustrate execution of the lease afresh in respect of respondent nos. 5-7, would not only be good enough for consideration, but also not maintainable at the moment, State contended. Mr. Ajay Choudhuri, representing Official Liquidator, had nothing to say as regards the execution of lease afresh in favour of respondent nos. 5-7. In furtherance of proposed prayer seeking mandamus to stall the execution of fresh lease deeds, learned advocate for the writ petitioners placed reliance on a decision reported in (2005) 6 SCC 657 delivered in the case of Binny Ltd. Anr. Vs. V. Sadasivan Ors., in order to establish that the instant writ application was very much maintainable under Article 226 of the Constitution of India, and the Court can exercise its judicial review of State inaction, challenged by writ petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for perfectly understanding the meaning of debt owing and debt in praesenti . According to Apex Court, when there is obligation to pay a sum of money at a future date, it is debt owing , when the obligation is to pay a sum of money in praesenti, it is debt due. Such interpretation of debt together with the principle laid down in such decision will hardly find any field for its due application in the given circumstances of this case. Learned advocate for respective respondents also challenged the applicability of such decisions, referred above. Having considered the submission of both sides, it appears that the points raised are thus squeezed to one and only question, whether writ of mandamus will lie in resolving a private dispute, intending to recover money in disguise alleging State inaction, already lent out to the beneficiary/erstwhile lessees/proforma respondent nos. 1 and 2 tea garden companies, when affidavit of report of debt for and on behalf of creditors/writ petitioners had already been filed before the Official Liquidator pursuant to a winding up order. According to writ petitioners, respondent no. 5 being M/s. Bamandanga Tea Estates Private Limited is su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quidation, the dues payable by the said companies (in liquidation) become a subject matter of Official Liquidator. The instant writ application proposing issuance of mandamus for stalling the execution of the lease deeds is not good enough for consideration for conspicuous absence of public law element in the contractual obligation to be discharged. Since, for and on behalf of the writ petitioners an affidavit of report of debt for creditors/writ petitioners has already been submitted before the Official Liquidator, the Court is of the view that there is hardly any scope to interpret the word existing liability of the erstwhile lessees/companies in its true context, contrary to the definition of Section 3 (10) (11) of the Insolvency and Bankruptcy Code, 2016, as proposed by either of the parties to this case, being an unnecessary academic exercise. As regards the fate of execution of the lease deeds followed by its registration, in favour of the respondent nos. 5, 6 and 7, the Court is of the further view that pursuant to the disclosure of the State/respondents, being communication made by Joint Secretary to the Government of West Bengal, addressed to the Official Liquidato ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
