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COMA/474/2009 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
COMPANY
APPLICATION No. 474 of 2009
In
OFFICIAL
LIQUDATOR REPORT No. 121 of 2008
In
COMPANY PETITION No. 299 of 1997
=========================================================
PRERNA
INFRASTRUCTURE PVT LTD - Applicant(s)
Versus
OFFICIAL
LIQUIDATOR OF M/S D RINDUSTRIES LTD (IN LIQUIDATION & 4 -
Respondent(s)
=========================================================
Appearance :
MR.D
K.PUJ for
Applicant(s) : 1,
OFFICIAL LIQUIDATOR for Respondent(s) :
1,
MR.HIREN M MODI for Respondent(s) : 1,
NOTICE SERVED BY DS
for Respondent(s) : 2 - 3.
MR SANDEEP N BHATT for Respondent(s) :
4,
MR NV ANJARIA for Respondent(s) :
5,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 15/03/2010
ORAL
ORDER
Heard
Shri D.K.Puj, learned advocate appearing on behalf of the applicant,
Shri Hiren Modi, learned advocate appearing on behalf of the
respondent No.1- Company (in liquidation) and Shri N.V.Anjaria,
learned advocate appearing on behalf of respondent No.5- Chief
Officer, Notified Area of G.I.D.C.Ankleshwar.
Present
Judge’s Summons has been taken out by the applicant for the
following reliefs.
(A) This
Hon’ble Court may be pleased to direct the Opponent No.5 to lodge
its claim for its dues against the Company in liquidation, for the
pre liquidation period before the Opponent No.1, after declaring
that the Applicant is not liable to pay such dues as per the settled
principles of law and also as per the terms of the tender document;
(B) This
Hon’ble court may further be pleased to restrain the Opponent No.5
from taking any coercive action for the recovery of dues against the
Company in liquidation from the Applicant pursuant to the Final
Public Notice in the Economic Times newspaper dated
28.11.2009;
(C) During
the pendency and final disposal of this Application, this Hon’ble
Court may be pleased to restrain the Opponent No.5 from taking any
coercive action for the recovery of dues against the Company in
liquidation from the Applicant pursuant to the Final Public Notice
in The Economic Times newspaper dated 28.11.2009;
(D) Ad
interim relief in terms of Para (C) may kindly be granted .
It
is the case on behalf of the applicant that applicant has purchased
the properties of the Company in liquidation comprised in Lot No.B
in the Official Liquidator’s Report No.121 of 2008 for a sum of
Rs.2,05,00,000/- on the terms and conditions of the sale as per the
tender document, which came to be confirmed by this Court vide order
dated 19.1.2009 passed in OLR No.121 of 2008. It is submitted that
as per the terms and conditions of the tender form, the applicant
being purchaser of the property in question shall be liable to pay
all statutory dues, if any, due and payable on the terms and
conditions of the said sale for the period after the date of winding
up order. It is submitted that for payment of any dues for
pre-liquidation period, the purchaser should not be liable to pay.
It is submitted that as per the terms and conditions of the tender
form, more particularly, Clause No.15, the payment of such dues for
pre-liquidation period shall be settled as per the provisions of the
Companies, Act, 1956. It is submitted that despite the same, the
Opponent No.5, Chief Office, Notified Area, GIDC Ankleshwar has
recently issued final public notice in The Economic Times
newspaper on 28.11.2009, asking the plot owners to clear all
outstanding dues for the notified area tax, water charges, drainage
charges and the total outstanding qua the plots purchased by the
applicant is shown at serial number 26 amounting to Rs.43,79,202/-.
It is submitted that applicant-Company being purchaser of the
property in question is liable to pay the notified area tax, water
charges and drainage charges, etc. if any, due and payable on the
properties of the said Company only for the period after the date of
winding up order. Therefore, it is submitted that demand made by the
respondent No.5 herein towards the outstanding dues for the notified
area tax, water charges, and drainage charges for the pre-winding up
period is absolutely illegal. It is submitted by Shri D.K.Puj,
learned advocate appearing on behalf of the applicant that as such,
applicant is ready and willing and shall pay whatever the amount is
outstanding towards the notified area tax, water charges and
drainage charges, for the period post winding up and the same shall
be deposited with the respondent No.5 within a period of 15
(fifteen) days from today.
From
the reply filed on behalf of the respondent No.5, it appears that
according to the respondent No.5 the amount of Rs.4,83,858/- is
outstanding towards notified area tax, water charges, drainage
charges, for the period from 20.11.2006 to 31.3.2010 i.e. post
winding up period. It is further submitted that on behalf of the
respondent No.5 even in terms Section 530 of Companies Act, 1956,
the dues of statutory tax are to be treated in priority for the
purpose of repayment when the company is under liquidation. Shri
Anjaria, learned advocate appearing on behalf of the respondent No.5
has submitted that for the outstanding amount due and payable for
the period of pre-winding up, respondent No.5 shall lodge a claim
with the Official Liquidator on or before 31st March,
2010 and the outstanding amount towards notified area tax, water
charges, drainage charges for the post winding up period which comes
to Rs.4,83,858/- be directed to be paid by the petitioner at the
earliest.
Having
heard the learned advocates appearing for the respective parties and
considering the terms and conditions of the sale as per the tender
document, the applicant-purchaser is liable to clear the outstanding
dues of the notified area tax, water charges and drainage charges
etc. due and payable to the respondent No.5 for the post winding up
period only and any outstanding dues towards
tax, water charges, and drainage charges for the pre-winding
period, the applicant-purchaser cannot be saddled with the
liability. It appears from the reply filed on behalf of the
respondent No.5 that the amount of Rs.4,83,858/- is outstanding for
the post winding up period and considering the statement made by
Shri D.K.Puj, learned advocate appearing on behalf of the
applicant-purchaser, recorded herein above, applicant shall pay /
deposit the aforesaid amount to the respondent No.5 within a period
of 15 (fifteen) days from today and it is held that for any
outstanding dues for notified area tax,
water charges, and drainage charges for the pre-winding up
period, applicant is not liable to pay the same. For any claim of
the respondent no.5 towards the outstanding dues for the notified
area tax, water charges, drainage charges for the period of
pre-winding up, it will be open for the respondent No.5 to lodge
their claim before the Official Liquidator. As and when such a claim
is lodged by the respondent No.5, the same be considered in
accordance with law and on its own merits by the Official
Liquidator, considering the provisions of the Companies Act, 1956,
more particularly, Section 530 of Companies Act, 1956.
With
this, present application is disposed of.
(M.R.SHAH,
J.)
(ashish)
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