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COMA/79/2010 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
COMPANY
APPLICATION No. 79 of 2010
In
COMPANY
PETITION No. 9 of 2006
In
COMPANY APPLICATION No. 358 of 2005
=========================================================
IDBI
BANK LIMITED (EARSTWHILE INDUSTRIAL DEVELOPMENT BANK - Applicant(s)
Versus
NIRMA
LIMITED & 2 - Respondent(s)
=========================================================
Appearance
:
MR
BHARAT JANI for
Applicant(s) : 1,
MR SN SOPARKAR SENIOR ADVOCATE WITH MS SWATI
SOPARKAR for Respondent(s) : 1,
OFFICIAL LIQUIDATOR for
Respondent(s) : 2,
MS AMEE YAJNIK for Respondent(s) : 2,
MR GN
SHAH for Respondent(s) :
3,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 13/12/2010
ORAL
ORDER
This
application has been filed by IDBI Bank Ltd. claiming following
reliefs :
(A)
Your Lordships may be pleased to direct respondent no.1 to permit
the applicant and the prospective buyer which may be brought by the
applicant to have the access to the Power Plant situated at Sachana,
Taluka Viramgam, District Ahmedabad and to have the inspection
thereof;
(B) Your
Lordships may be pleased to direct the Official Liquidator of Core
Healthcare Limited (Company in liquidation)- respondent No.2 to
handover the possession of the said Power Plant which is not the
secured asset or the property of Core Healthcare Limited(Company in
liquidation), if the possession thereof has been taken under the
winding up order passed by the Hon’ble High Court on 24.6.2009
(Coram : Jayant Patel,J.) in Company Petition No. 189 of 2008;
(C)
Your Lordships may be pleased to direct respondent No.1 to handover
the possession of the leased assets i.e. the Power Plant situated at
Sachana, Taluka Viramgam, District Ahmedabad, to the applicant
bank-lessor forthwith without any delay;
(D)
Your Lordships may be pleased to order to pay damages against
respondent No.1 Company for causing unnecessary hindrance and
consequential delay in handing over the possession of the leased
assets i.e. the Power Plant situated at Sachana, Taluka Viramgam,
District Ahmedabad resulted into tremendous financial loss to the
applicant who is legitimately entitled to get back the possession of
the said leased assets.
(E) Your
Lordships may be pleased to permit the applicant to sell the leased
assets i.e. the Power Plant situated at Sachana, Taluka Viramgam,
District Ahmedabad, to recover its legitimate dues due and payable
by M/s. Core Healthcare Limited (Company in liquidation) under the
Lease Agreement dated 26.9.1996.
(F) Any
other and further relief/s that this Hon’ble Court may deem just and
proper, may please be granted in the interest of justice.”
Shortly
stated few undisputed facts are as follows :
2.1 One
Core Health Care ltd.(“CHC” for short) was de-merged and
a part of the unit in merger scheme merged with Nirma Ltd. Such
merger was approved by the learned Single Judge of this Court by
judgement dated 1.3.2007 in Company Petition No.9 and 10 of 2006.
Though such judgement has been carried in appeal, same has not been
stayed. Subsequently, CHC also is being wound up pursuant to order
passed in Company Petition No. 189/2008 under order dated 24.6.2009.
The
petitioner IDBI Bank ltd. contended that one Power Plant situated at
Sachana, Taluka Viramgam which was in possession of the CHC was of
the ownership of IDBI Bank Ltd. since IDBI Bank Ltd. had entered
into lease and buy-back agreement with CHC. It is also the case of
the petitioner IDBI Bank Ltd. that such power plant was not part of
the merger scheme, was specifically kept out of the scheme and that
therefore, petitioner should be handed over the possession of such
property.
The
claim of the petitioner IDBI Bank Ltd. is hotly disputed by
respondent no.3 Alstom Projects Ltd. Claim of Alstom Projects Ltd.
is that it has secured dues of crores of rupees over the said
property and CHC could not have entered into any understanding or
agreement with IDBI Bank Ltd. with respect to such a property
without consent of Alstom Projects Ltd.
Before
the Learned Single Judge IDBI Bank Ltd. had in merger scheme
proceedings also made similar prayer for being handed over the
possession of the Power Plant by filing Company Application
No.602/2006. In this regard, Learned Single Judge made following
observations :
“79. IDBI
Bank has filed Company Application No.602 of 2006 for return of the
power plant, which was purchased by Core from M/s.Alstom Projects
(India) Ltd. and sold to IDBI Bank. Their submission is that the said
plant is not a part of the Scheme and though ARCIL has permitted them
to take away their plant, Nirma is not permitting them to take away
their plant.
80. The
petitioners have submitted that this issue does not arise out of the
Scheme proceedings. They do nowhere say that the power plant belongs
to Core or is a part of the Scheme or has been transferred to Nirma.
If the power plant does not belong to Core or is not being
transferred in favour of Nirma, then, Nirma would not be entitled to
retain its possession. True it is, that the Apex Court, in the matter
of Nocil vs. Mafatlal Industries Limited [AIR
2004 SC 3933], has observed that such would be an issue
beyond the scope of consideration in a matter relating to sanction of
the Scheme, but, in the opinion of this Court, it must be observed in
favour of IDBI that if Core or Nirma does not permit them to have the
possession of their power plant, then, they would be entitled to take
appropriate legal proceedings against Core and/or Nirma. At this
stage, I must advise Core and Nirma that if the property does not
belong to them, then, they should not create unnecessary
complications in the matter and should always act as honest business
people, who do not grab property of others.
Alstom
Projects Ltd. had also filed Company Application No. 618/2006
seeking possession of the same Power Plant. Such application was
turned down by Learned Single Judge by same order in the following
manner :
“78. M/s.
Alstom Projects (India) Ltd. has filed Company Application No.618 of
2006 submitting, inter alia, that it has supplied a power
plant and is an unpaid seller and therefore, is entitled to return
of the power plant. In the opinion of this Court, an unpaid seller
would be an unsecured creditor. Such an unpaid seller or unsecured
creditor, in the preset set of circumstances, would not be entitled
to recover any money and even in case of winding up of the company
if would not come in the first queue to receive the money, then,
they cannot be allowed to say that they are entitled to return of
the plant.”
Alstom
Projects Ltd. had preferred appeal against said decision of Learned
Single Judge. Same is pending before the Division Bench. IDBI Bank
Ltd. has not carried said order further in appeal.
Stand
of Nirma Ltd. is that though it does not claim any ownership right
over the Power Plant and is prepared to handover the same to any
entity, it must be protected against any further claims in this
regard.
Counsel
for the petitioner IDBI Bank ltd. submitted that Learned Single
Judge in order dated 1.3.2007 had clearly held in favour of IDBI
Bank Ltd. and that OL should be directed to hand over the possession
of the said power plant. Counsel for Alstom Projects Ltd. however,
submitted that there is no such direction of the Learned Single
Judge. In any case, dues of IDBI Bank Ltd. and the validity of
agreement under which it claims right, title and interest over the
Power Plant are seriously under dispute. Without adjudication of
rival claims, prayers made in this application cannot be granted.
Without
expressing any opinion on rival contentions, I am simply of the
opinion that this Company Application is not maintainable. IDBI Bank
Ltd’s previous application was not entertained by the Learned Single
Judge while considering merger scheme of unit of CHC and Nirma.
There are no proceedings in which said Power Plant can be stated to
have been dealt by this Court in any company petition or winding up
petition. Rival claims of IDBI Bank Ltd. and Alstom Projects Ltd.
cannot be judged in the present application. Parties shall have to
resort to remedies under law. I do not see any direction of the
Learned Single Judge in decision dated 1.3.2007 holding that IDBI
Bank Ltd. enjoys any possessory or ownership right over the Power
Plant in question.
In
result this application is dismissed.
(Akil
Kureshi,J.)
(raghu)
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