{"id":130704,"date":"2008-11-10T00:00:00","date_gmt":"2008-11-09T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/o-l-vs-icici-on-10-november-2008"},"modified":"2017-03-15T00:38:35","modified_gmt":"2017-03-14T19:08:35","slug":"o-l-vs-icici-on-10-november-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/o-l-vs-icici-on-10-november-2008","title":{"rendered":"O.L vs Icici on 10 November, 2008"},"content":{"rendered":"
Gujarat High Court<\/div>\n
O.L vs Icici on 10 November, 2008<\/div>\n
Author: K.A.Puj,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nOLR\/13620\/2006\t 17\/ 17\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nOFFICIAL\nLIQUDATOR REPORT No. 136 of 2006\n \n\nIn\n\n\n \n\nCOMPANY\nPETITION No. 100 of 1997\n \n\nWith\n\n\n \n\nCOMPANY\nAPPLICATION No. 170 of 2008\n \n\nIn\n\n\n \n\nOFFICIAL\nLIQUDATOR REPORT No. 136 of 2006\n \n\n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE K.A.PUJ\n \n \n=========================================================\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo\n\t\t\tbe referred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n \n=========================================================\n\n \n\nO.L.\nOF M\/S. GUJARAT B.D. LUGGAGE LTD. - Applicant(s)\n \n\nVersus\n \n\nICICI\nBANK LTD. & 5 - Respondent(s)\n \n\n=========================================================\n \nAppearance\n: \nOFFICIAL\nLIQUIDATOR for\nApplicant(s) : 1,MS AMEE YAJNIK for Applicant(s) : 1, \nSINGHI &\nCO for Respondent(s) : 1, \nMR BHARAT JANI for Respondent(s) :\n2, \nNOTICE SERVED for Respondent(s) : 3, \nMR INDRAVADAN PARMAR\nfor Respondent(s) : 4, \nMR BHARAT T RAO for Respondent(s) : 5, \nMRS\nKRISHNA G RAWAL for Respondent(s) :\n6, \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE K.A.PUJ\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 10\/11\/2008  \n \nORAL JUDGMENT<\/pre>\n
\tThe Official Liquidator
\n\thas filed OLR No.136 of 2006 making several prayers therein, more
\n\tparticularly placing on record two valuation reports, one dated
\n\t22.4.1999 submitted by Shri Mukesh M. Shah and another one dated
\n\t21.12.2005 submitted by Shri Vinod R. Trivedi, and also informing
\n\tthe Court about large instances of theft which has not been reported
\n\tto the Official Liquidator by the Security Agency, namely, M\/s.
\n\tModern Safe Guard Pvt. Ltd.  The Official Liquidator has further
\n\tprayed for change in the security agency and entrusting the security
\n\twork to M\/s.Noble Detective & Security Services Pvt. Ltd., and
\n\tfixing their remuneration.\n<\/p>\n
\tThis Court has issued
\n\tnotice on 17.11.2006 and directed the responsible officer from
\n\trespondent Nos.5 and 6 to remain personally present before the Court
\n\ton the next date of hearing i.e. 1.12.2006.  Since the notices could
\n\tnot be served on the respondent Nos.5 and 6, nobody remained present
\n\tbefore the Court.  However, at the relevant time the respondent No.5
\n\twas incharge of the security work and hence bailable warrant was
\n\tissued on Shri Jaydeep Singh   Director of M\/s. Modern Safe Guard
\n\tPvt. Ltd.  On behalf of the respondent No.5 Mr. B.T.Rao, learned
\n\tadvocate filed his appearance and direction was issued to respondent
\n\tNo.5 to remain personally present.  On 6.3.2007 time was sought for
\n\ton behalf of the respondent No.5 to file detailed affidavit-in-reply
\n\tafter inspection of the record like inventory etc. from the office
\n\tof the Official Liquidator, despite the fact that detailed affidavit
\n\twas filed on behalf of the respondent No.5 on 23.2.2007.  This Court
\n\thas observed in its order dated 24.4.2007 that as per the valuation
\n\treport dated 22.4.1998 submitted by the Valuer Shri Mukesh M. Shah,
\n\tplants, machineries and other movables at the relevant time were
\n\tworth Rs.1,72,75,000\/- and then security agency was appointed.
\n\tInspite of that when subsequent valuation was carried out by Shri
\n\tVinod R. Trivedi on 21.12.2005,  it was found that plants,
\n\tmachineries and other movables were worth Rs.1,05,000\/- only.  The
\n\tCourt, therefore, directed the Official Liquidator to file detailed
\n\tcriminal complaint with the concerned Police Station immediately for
\n\ttheft etc, on or before 30.4.2007 and the concerned Police Authority
\n\t\/ Police Inspector of the concerned Police Station was directed to
\n\tinvestigate the said FIR immediately.\n<\/p>\n
\tPursuant to the order
\n\tdated 24.4.2007 the Official Liquidator issued a letter dated
\n\t30.4.2007 to the Police Inspector, Kalol, Dist. Panchmahal under
\n\twhose jurisdiction the Company situated and also deputed an Official
\n\tfrom his office to Kalol Police Station, Dist. Panchmahal to file
\n\tdetailed criminal complaint for theft etc.  The complaint has been
\n\tregistered as FIR No.85 of 2007 on 1.5.2007 and the said FIR was
\n\tplaced on record of this Court alongwith Official Liquidator’s
\n\tReport dated 2.5.2007.\n<\/p>\n
\tOn behalf of the
\n\trespondent No.5 additional affidavit was filed on 9.7.2007
\n\treiterating that the respondent No.5 is not responsible for the
\n\talleged theft committed at the factory premises.  The Court,
\n\tthereafter, vide its order dated 26.9.2007 directed the Official
\n\tLiquidator to file report based on the communications received by
\n\tthe Official Liquidator from the concerned Police Station in
\n\tconnection with the complaint of theft. The Official Liquidator was
\n\talso directed to file report as to whether the very security agency
\n\twas looking after  any property of the Company in liquidation or not
\n\tand if yes, the details thereof.  Pursuant to this order the
\n\tOfficial Liquidator has filed his report dated 14.12.2007.  In his
\n\treport he has stated that the security services of M\/s. Modern Safe
\n\tGuard Pvt. Ltd., have been taken away from the factory premises of
\n\tthe Company as well as of other companies in liquidation where the
\n\tconcerns of Shri T.V. Singh were assigned the work of safeguarding
\n\tassets of the Company.  It was further stated in the said report
\n\tthat before change of the security arrangement, the valuation of the
\n\tassets of the Company was obtained and large discrepancy was found
\n\tbetween two valuation reports.  Since Mr. B.T.Rao, learned advocate
\n\tappearing for the respondent No.5 has stated before the Court on
\n\tthat day that he could not contact his client and his presence was
\n\trequired, the Court has issued non-bailable warrant on Shri T.V.
\n\tSingh, the authorised person of respondent No.5.\n<\/p>\n
\tBefore the Non-bailable
\n\twarrant could be served on the respondent No.5, an application being
\n\tCompany Application No.170 of 2008 is filed on behalf of the
\n\trespondent No.5, praying for cancellation of Non-bailable warrant
\n\tand undertaking to this Court that the respondent No.5 would remain
\n\tpresent as and when any direction is issued by this Court.  Since
\n\tShri T. V. Singh against whom Non-bailable warrant was issued was
\n\tpresent before the Court on 5.3.2008,  non-bailable warrant issued
\n\tby this Court on 19.2.2008 was kept in abeyance.  On 14.3.2008, this
\n\tCourt has observed in its order on the basis of submission made by
\n\tMr. B.T.Rao that the charge-sheet has been filed and hence the copy
\n\tof the charge-sheet is required to be placed on record.  The Court,
\n\ttherefore, directed the Official Liquidator to verify from his
\n\trecord and to produce the same on the record of this application.
\n\tPursuant to to the order dated 14.3.2008 the Official Liquidator has
\n\tfiled his report on 18.3.2008 stating that the copy of charge-sheet
\n\twas not made available to the Official Liquidator he, therefore,
\n\twrote letter to the concerned Police Station on 18.3.2008 and
\n\tassured the Court that as and when the charge-sheet is received the
\n\tsame will be placed on the record.  It appears that the charge-sheet
\n\thas not come on record till this date.\n<\/p>\n
\tIn the above background
\n\tof the matter, detailed submissions were made by the learned
\n\tadvocates appearing on behalf of the respective parties.  Ms. Amee
\n\tYajnik, learned advocate appearing for the Official Liquidator, Mr.
\n\tBharat Jani, learned advocate appearing for IFCI and Mr. Indravadan
\n\tParmar, learned advocate appearing for IDBI, have strongly submitted
\n\tthat theft on large scale has been committed during the tenure of
\n\tthe respondent No.5 and hence the respondent No.5 cannot be absolved
\n\tfrom its responsibility. Irrespective of the Criminal complaint that
\n\thas been filed against the respondent No.5 the loss caused to the
\n\tCompany of the assets that have been stolen away should be made good
\n\tby the respondent No.5 and the Official Liquidator should be
\n\tdirected to initiate proceeding for recovery of the amount.  Not
\n\tonly this, no payment should be made to the respondent No.5 against
\n\tits outstanding dues, if any.\n<\/p>\n
\tMr. B.T.Rao, learned
\n\tadvocate appearing for the respondent No.5 on the other hand, has
\n\tstrongly urged that the Official Liquidator has not placed true and
\n\tcorrect facts before this Court and he has tried to mislead the
\n\tCourt by making wild allegations against the respondent No.5 without
\n\tverifying true and correct facts.  He has further submitted that
\n\tM\/s. Gujarat B.D. Luggage Ltd. was before the BIFR under SICA Act,
\n\t1985 and the BIFR did not agree as the agreement submitted by the
\n\tDirector was not viable and BIFR forwarded its opinion for winding
\n\tup of the Company. Thereupon the registry of this Court has received
\n\tregistered Company Petition No.100 of 1997 and matter has been
\n\tplaced before the Court.  This Court issued notice on 28.7.1997 and
\n\tthe Official Liquidator was appointed as Provisional Liquidator by
\n\torder dated 28.7.1997.  On 1.9.1997 the Official Liquidator wrote
\n\tthe respondent No.5 to work as security agency on usual prevailing
\n\trate for payment of security agency for the protection of the assets
\n\tof the Company.  He has further submitted that the Official
\n\tLiquidator sealed the factory premises and only small gate was kept
\n\topen for moving in and out of the security agency.  No inventory had
\n\tbeen taken in the presence of the security agency at any point of
\n\ttime nor it was given to the respondent No.5.  He has further
\n\tsubmitted that the valuer appointed by the Official Liquidator had
\n\tvisited the factory premises on 24.4.1998.  There also the signature
\n\tof any guard deployed there had not been taken.  He has further
\n\tsubmitted that after 1998 regular inspection took place and
\n\trepresentatives of the secured creditors were visiting the premises
\n\tand they took round of the premises on their own.  He has further
\n\tsubmitted that the respondent No.5 was not getting regular payment
\n\tinspite of  various requests made to the Official Liquidator.  It
\n\twas made clear to the Official Liquidator that if the payments were
\n\tnot made in time, the respondent No.5 would not be responsible to
\n\tguard the properties of the Company.  He has further submitted that
\n\tthe Sale Committee was constituted and property was put to sell,
\n\thowever no offer was received.  He has further submitted that
\n\tanother valuation report was taken.  However, the same was not as
\n\tper the practice and procedure adopted by the valuer.  If one would
\n\tcompare both the valuation reports, it would be very clear that in
\n\t1998 value of the land was Rs.95 lacs and in 2005 the same has been
\n\treduced to Rs.14 lacs.  In no circumstances, the valuation of the
\n\timmovable property can be decreased.  He has further submitted that
\n\tthe valuer has not looked into the plant, furniture, fixture and
\n\tvague valuation has been made.  He has further submitted that in the
\n\tsubsequent report of 2005 the valuer has not mentioned anything
\n\tabout details of the machineries and only three lots have been shown
\n\twhile earlier report give different items in lotwise for every
\n\tparticular item.  He has, therefore, submitted that in absence of
\n\tany documentary evidence such as list of machineries which was there
\n\tin the first inventory in 1997 and detailed inventory made in the
\n\tfirst valuation report of 1998, supplied to the respondent No.5, no
\n\tliability can be fastened on the respondent No.5.  He has further
\n\tsubmitted that it was not the case of the Official Liquidator that
\n\tthe lock applied by it has been broken and in absence of that the
\n\tvaluation report is required to be rejected.  He has further
\n\tsubmitted that since the property was scattered in the large area
\n\tand during the midnight if something had happened, it was not within
\n\tthe knowledge of the respondent No.5 and that the respondent No.5
\n\twas not aware as to which type of machineries were there in the
\n\tpremises.  Considering all these submissions, he has submitted that
\n\tthe respondent No.5 is not at all responsible for any theft that has
\n\tbeen taken place in the factory premises of the Company in
\n\tliquidation.\n<\/p>\n
\tHaving heard the learned
\n\tadvocates appearing for the respective parties and having gone
\n\tthrough the report filed by the Official Liquidator as well as the
\n\taffidavit-in-reply filed on behalf of the respondent No.5 and having
\n\tconsidered the two valuation reports as well as other documents on
\n\trecord, the Court is of the view that the work of protecting and
\n\tsafeguarding the assets of the Company has been assigned to the
\n\trespondent No.5 way back in 1997 and from that date onwards the
\n\trespondent No.5 was incharge of the said work.  The first valuation
\n\treport was obtained on 22.4.1998 and the second valuation report was
\n\tobtained on 21.12.2005.  Till then the respondent No.5 was incharge
\n\tof safeguarding the assets of the Company in liquidation.  It is,
\n\ttherefore, clear that the movable assets were stolen or removed
\n\tduring the tenure of the respondent No.5.\n<\/p>\n
Sr.No.\n<\/p>\n
Description of
\n\t\t\t\t\tproperty <\/p>\n
Amount
\n\t\t\t\t\tas per valuation report submitted by Shri Mukesh M. Shah, Valuer
\n\t\t\t\t\t(Rs.)<\/p>\n
Amount
\n\t\t\t\t\tas per valuation report submitted by Shri Vinod R. Trivedi,
\n\t\t\t\t\tValuer (Rs.)<\/p>\n
1<\/span><\/p>\n
Land <\/p>\n
53,95,000<\/p>\n
14,88,500<\/p>\n
2<\/span><\/p>\n
Building
\n\t\t\t\t\tStructure<\/p>\n
1,59,00,000<\/p>\n
3,86,18,915<\/p>\n
3<\/span><\/p>\n
Plant
\n\t\t\t\t\t& machineries &  other movables<\/p>\n
1,72,75,000<\/p>\n
1,05,000<\/p>\n
4<\/span><\/p>\n
stocks<\/p>\n
50,00,000<\/p>\n
Nil<\/p>\n
TOTAL<\/p>\n
4,35,70,000<\/p>\n
4,02,05,000<\/p>\n
\tFrom the above statement
\n\tit is clearly revealed that so far plant and machineries and other
\n\tmovables as well as stocks are concerned, there was substantial
\n\treduction and value of Rs.1,72,75,000\/- has gone down to
\n\tRs.1,05,000\/- only and stock value was shown at Rs. Nil as against
\n\tRs.50 lacs shown in the valuation report dated 22.4.2008.  The
\n\texplanation given by the respondent No.5 is not at all tenable and
\n\tit gives an impression that the respondent No.5 wanted to serk from
\n\tits responsibility.  It is relevant to note that Shri T.V.Singh was
\n\toriginally running a concern, namely, M\/s. Industrial Personnel and
\n\tSecurity Services and work of securing and safeguarding the assets
\n\tof the Company, namely, The Ahmedabad Manufacturing & Calico
\n\tPrinting Mills Co. Ltd., was assigned to him.  This Court vide order
\n\tdated 17.8.2005 passed in OLR No.112 of 2003 has directed the
\n\tOfficial Liquidator to recover an amount of Rs.6,19,04,660\/- from
\n\tM\/s. Industrial Personnel and Security Services a concern of Shri
\n\tT.V.Singh as stated in the minutes of the meeting of Sale Committee
\n\theld on 10.8.2006.  It is, therefore, clear that Shri Singh is in
\n\tthe habit of indulging in such practice of removing the assets of
\n\tthe company in liquidation, whenever any work is assigned he has
\n\tdone the same thing.  This Court has, therefore, no hesitation in
\n\tholding that the respondent No.5 with which Mr.Singh is closely
\n\tassociated is responsible for the theft committed and the Official
\n\tLiquidator has rightly changed the security agency and stopped the
\n\tpayment of its outstanding dues, if any.  Mere stopping of payment
\n\twould not serve any purpose as the loss caused to the Company in
\n\tliquidation is much more and the huge recovery is required to be
\n\tmade against the respondent No.5 as well as the other concern with
\n\twhich Mr. T.V.Singh is associated.  The Official Liquidator is,
\n\ttherefore, directed to look into the matter and vigorously pursue
\n\tfor recovery of the amount.  The Official Liquidator is further
\n\tdirected to ascertain the status of the criminal complaint that has
\n\tbeen filed and file a fresh report before this Court placing the
\n\tcharge-sheet on record and any development that has been taken place
\n\tin the criminal complaint pending before the Criminal Court at
\n\tKalol.  The action of the Official Liquidator in entrusting the work
\n\tof security to the respondent No.6 is hereby ratified.  The Official
\n\tLiquidator is further directed to undertake the procedure for sale
\n\tof the assets of the company in liquidation after fixing the
\n\tdetailed schedule in consultation with the secured creditors.  After
\n\tascertaining the status of criminal case the Official Liquidator
\n\tshall file a fresh report before this Court.\n<\/p>\n
\tSubject to the aforesaid
\n\tdirections and observations this OLR as well as Company Application
\n\tboth are disposed off.\n<\/p>\n
\t                       (K.\n<\/p>\n
\tA. PUJ, J.)   <\/p>\n
kks<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court O.L vs Icici on 10 November, 2008 Author: K.A.Puj,&Nbsp; Gujarat High Court Case Information System Print OLR\/13620\/2006 17\/ 17 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD OFFICIAL LIQUDATOR REPORT No. 136 of 2006 In COMPANY PETITION No. 100 of 1997 With COMPANY APPLICATION No. 170 of 2008 In OFFICIAL LIQUDATOR […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-130704","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nO.L vs Icici on 10 November, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/o-l-vs-icici-on-10-november-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"O.L vs Icici on 10 November, 2008 - 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