{"id":182240,"date":"2010-02-08T00:00:00","date_gmt":"2010-02-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/manibhadra-vs-ol-on-8-february-2010"},"modified":"2017-12-01T01:37:00","modified_gmt":"2017-11-30T20:07:00","slug":"manibhadra-vs-ol-on-8-february-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/manibhadra-vs-ol-on-8-february-2010","title":{"rendered":"Manibhadra vs Ol on 8 February, 2010"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Manibhadra vs Ol on 8 February, 2010<\/div>\n
Author: D.A.Mehta,&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\nCOMA\/425\/2009\t 30\/ 30\tORDER \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nCOMPANY\nAPPLICATION No.425 of 2009\n \n\nIn\n\n\n \n\nOFFICIAL\nLIQUDATOR REPORT No.20 of 2007\n \n\n===================================================\n \n\nMANIBHADRA\nSALES CORPORATION - Applicant(s)\n \n\nVersus\n \n\nOL\nOF MOTOROL (INDIA) LTD & 4 - Respondent(s)\n \n\n\n=================================================== \nAppearance\n: \nMR NAVIN PAHWA for MRS\nSANGEETA N PAHWA for the Applicant \nOFFICIAL\nLIQUIDATOR for Respondent(s) : 1, \nMR JS YADAV for Respondent(s) :\n1, \nMSBALARTHACKER for Respondent(s) : 2, \nNOTICE SERVED for\nRespondent(s) : 3, \nNOTICE UNSERVED for Respondent(s) : 4, \nMR\nRAJESH P MANKAD for Respondent(s) :\n5, \n===================================================\n \n\n \n\n\n \n\n WITH\n \n\nOFFICIAL\nLIQUDATOR REPORT No.6 of 2010\n \n\nIn\n\n\n \n\nCOMPANY\nPETITION No.29 of 1997\n \n\n===================================================\n \n\nOL\nOF MOTOROL(INDIA) LTD. - Applicant(s)\n \n\nVersus\n \n\nBANK\nOF BARODA & 5 - Respondent(s)\n \n\n\n=================================================== \nAppearance\n: \nOFFICIAL LIQUIDATOR for Applicant(s) : 1,MR JS YADAV for\nApplicant(s) : 1, \nNOTICE SERVED BY DS for Respondent(s) : 1 - 4,\n6, \nMR RAJESH P MANKAD for Respondent(s) :\n5, \n===================================================\n \n\n WITH\n \n\nCOMPANY\nAPPLICATION No.494 of 2009\n \n\nIn\n\n\n \n\nOFFICIAL\nLIQUDATOR REPORT No.20 of 2007\n \n\n===================================================\n \n\nSARVAIYA\nEXPORTS LIMITED & 1 - Applicant(s)\n \n\nVersus\n \n\nOL\nOF MOTOROL (INDIA) LTD - Respondent(s)\n \n\n\n=================================================== \nAppearance\n: \nMR NAVIN K PAHWA for Applicant(s) : 1 - 2. \nOFFICIAL\nLIQUIDATOR for Respondent(s) : 1, \nMR JS YADAV for Respondent(s) :\n1, \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 D.A.MEHTA\n\t\t\n\t\n\n \n\n\nDate\n: 08-09.02.2010 \n\n \n\n COMMON\nORAL ORDER<\/pre>\n
 ORDER
\nIN COMPANY APPLICATION No.425 of 2009<\/p>\n
Both
\n\tthese matters have been heard together as they involve the same
\n\tsubject matter, namely, plant and machinery which is claimed by the
\n\tapplicant of Company Application No.425 of 2009 to have been
\n\tpurchased at the auction held by the sale committee as confirmed by
\n\tthe Company Court vide order dated 05.08.2008 made in Official
\n\tLiquidator Report No.20 of 2007, whereas the stand of the Official
\n\tLiquidator is that the said property was never put up for
\n\tsale and hence, there is no question of such a sale being confirmed
\n\tby the Company Court. Official Liquidator Report No.6 of 2010 has
\n\tbeen preferred for putting up the disputed property for sale.\n<\/p>\n
 DATED:\n<\/p>\n
09.02.2010<\/p>\n
The
\n\tCompany (in liquidation) was ordered to be wound up vide order dated
\n\t19.08.1999 made in Company Petition  No.29 of 1997. Pursuant thereto
\n\tthe Company Court directed constitution of a sale committee to put
\n\tup properties of Company  (in liquidation) for sale. One of the
\n\tproperties  so  put up for sale  was described as Lot No.B-4 being
\n\tbuilding\/civil construction, plant and machineries and all other
\n\tmovables, (except records), situated at Plot No.10, Revenue Survey
\n\tNo.73, Village Duniya, Taluka Halol, Dist. Panchmahals. The upset
\n\tprice was fixed at Rs.55,00,000\/- on the basis of valuation report
\n\tshowing value to be Rs.53,48,000\/-. At the inter se bidding
\n\tbefore the sale committee the applicant herein emerged the highest
\n\tbidder at Rs.1.50 crores. Official Liquidator therefore, approached
\n\tthe Company Court with Official Liquidator Report No.20 of 2007 and
\n\tvide order dated 05.08.2008 the sale was confirmed for a sum of
\n\tRs.1.50 crores in favour of the the present applicant.\n<\/p>\n
Before
\n\tthe applicant could be put in possession of the property in question
\n\tone Sahara Packaging Pvt. Ltd. (Sahara Packaging) preferred
\n\tCompany Application No.455 of 2008 pursuant to connected application
\n\tbeing Company Application No.34 of 2007. In Company Application
\n\tNo.455 of 2008 following order dated 17.10.2008 came to be made by
\n\tthe Court:\n<\/p>\n
 5.\tIn
\n\tview of aforesaid, it is hereby ordered, without prejudice to the
\n\trights and contentions of the parties and as observed earlier, that
\n\tthe parties shall see that Company Application No.34 of 2007 is
\n\theard and decided at the earliest and they are directed to cooperate
\n\twith the hearing of the said Application. Opponent no.8-Auction
\n\tPurchaser be returned the amount of Rs.1.45 crores, out of the
\n\tamount of Rs.1.50 crore paid, in view of the complexity from the
\n\tamount of sale consideration paid by it. The Official Liquidator
\n\tshall retain the remaining amount of Rs.5 lakhs  at present as part
\n\tof consideration against sale. If the applicant of Company
\n\tApplication No.34 of 2007 succeeds, opponent no.8 can be permitted
\n\tto back out from the bid and its commitment to pay the amount of
\n\tsale consideration. Further, opponent no.8 can get its amount of
\n\tRs.5 lakhs of the company back, retained and lying with the Official
\n\tLiquidator. If the present applicant and applicant of Company
\n\tApplication No.34 of 2007 ultimately fails in the proceedings,
\n\topponent no.8 can pay the amount of Rs.1.45 crores to the Official
\n\tLiquidator as amount of consideration within a reasonable period of
\n\ttime, not exceeding 30 days from the date of outcome of Company
\n\tApplication No.34 of 2007 and can claim the property as purchased by
\n\tit. The Official Liquidator or any secured creditor may not be
\n\tpermitted to carry out a fresh auction only on the ground of efflux
\n\tof time or any other ground whatsoever.\n<\/p>\n
\t6.\tIf
\n\tthe present applicant and applicant of Company Application No.34 of
\n\t2007 fails in the proceedings of Company Application No.34 of 2007
\n\tand opponent no.8-Auction Purchaser-Manibhadra Corporation is not
\n\tinclined to continue with its claim of purchase of properties as a
\n\tsuccessful bidder, it may be liable to pay the costs to the Company
\n\tin liquidation to the maximum of Rs.5 lakhs. The recovery of costs
\n\tor loss shall not exceed the amount of Rs.5 lakhs i.e. equal to the
\n\tentire sum of Rs.5 lakhs, and the same can be confiscated if this
\n\tCourt so orders. It will be open for the Court to return this amount
\n\tafter hearing the parties and in other background.\n<\/p>\n
Subsequent
\n\tthereto after hearing all the parties even Company Application No.34
\n\tof 2007 came to be rejected vide judgment rendered on
\n\t23.07.2009-06.08.2009. The claim made on the basis of alleged
\n\tpurchase of a part of plant and machinery by Sahara Packaging was
\n\trejected by this Court.\n<\/p>\n
Thereafter,
\n\ton 05.11.2009 the applicant was put in possession of the property in
\n\tquestion. However, it appears that a part of plant and machinery was
\n\tnot handed over to the applicant. Hence, in the minutes recorded on
\n\t05.11.2009 following endorsement came to be made by the petitioner:\n<\/p>\n
\t I
\n\ttook pussession of plant and machinery with a objection regarding
\n\tthe machineries of sahara packaging is lying in side the premise.\n<\/p>\n
Subsequent
\n\tthereto on 12.11.2009 the applicant wrote to the Official Liquidator
\n\tto hand over possession of the entire property comprising of Lot
\n\tNo.B-4. Admittedly, the liquidator did not respond to the said
\n\tcommunication.\n<\/p>\n
In
\n\tthe backdrop of the aforesaid facts and circumstances of the case
\n\tlearned advocate for the applicant submitted that as per the
\n\tdescription in salient features of the assets, which were put up for
\n\tsale, offer had been invited for plant and machineries and all other
\n\tmovables (except records) and hence, there was no question of any
\n\tpart of plant and machineries not forming part of Lot No.B-4. The
\n\tuse of the phrase  all other movables  was emphasised in
\n\tsupport. That in fact no such stand had been adopted by the
\n\tliquidator at any stage prior to the point of time of filing reply
\n\tto this application. It was further submitted that against an upset
\n\tprice of Rs.55,00,000\/- when a purchaser is ready and willing to
\n\toffer a sum of Rs.1.50 crores that would itself indicate that the
\n\tapplicant had made a consolidated bid for all the movable assets
\n\tdescribed in Lot No.B-4 and part of plant and machineries could not
\n\tbe segregated or kept out of the said lot. Learned advocate,
\n\ttherefore, submitted that the applicant was entitled to possession
\n\tof the entire property described in Lot No.B-4 and necessary
\n\tdirection in this regard be issued to the Official Liquidator of the
\n\tCompany (in liquidation).\n<\/p>\n
As
\n\tagainst that learned advocate appearing for the Official Liquidator
\n\tsubmitted that the two sets of plant and machineries were separate,
\n\twere lying at separate place though in the same compound, and from
\n\tinception the intention of the liquidator and the sale committee was
\n\tnot to include the said lot of machineries in the property put up
\n\tfor sale. That this fact could be borne out from two separate
\n\tvaluation reports which had been obtained by the liquidator as
\n\tplaced on record of Official Liquidator Report No.6 of 2010. In fact
\n\tin Official Liquidator Report No.6 of 2010 the liquidator had moved
\n\tthe Court for permission to put up the said separate assets for
\n\tsale. It was further submitted that once valuation had been carried
\n\tout separately for both the sets of plant and machineries there was
\n\tno question of treating both the sets as part of one lot as
\n\tcontended by the applicant. An incidental submission was that the
\n\tapplicant had approached the Court belatedly and had not raised any
\n\tobjection when the possession had been handed over. That the
\n\tapplication was an afterthought having been filed only after
\n\trejection of Company Application No.34 of 2007 and therefore
\n\tdeserved to be rejected.\n<\/p>\n
In
\n\tlight of the controversy brought before the Court it was found
\n\tnecessary to peruse the original record of Official Liquidator
\n\tReport No.20 of 2007 as well as Company Application No.34 of 2007 to
\n\tascertain whether the liquidator or the sale committee had recorded
\n\tanything in relation to the property in question when sanction was
\n\tsought for confirming the sale in favour of the highest  bidder.
\n\tAccordingly, the Court had called for papers of Official Liquidator
\n\tReport No.20 of 2007 as well as Company Application No.34 of 2007.\n<\/p>\n
A
\n\tplain reading of the report of the Official Liquidator as appearing
\n\tin Official Liquidator Report No.20 of 2007 would indicate that at
\n\tno place there is any averment indicating to the Company Court that
\n\tthe property comprised of Lot No.B-4 is only a part of the property
\n\tof the Company (in liquidation) lying (situated) at the same
\n\tpremise. The record of Official Liquidator Report No.20 of 2007 also
\n\tdoes not indicate that two separate valuation reports had been
\n\tobtained by the liquidator in relation to the property put up for
\n\tsale and the property in dispute which, according to the liquidator,
\n\thad been separately valued. In fact no valuation report in relation
\n\tto the property comprised of Lot No.B-4 is available on record of
\n\tOfficial Liquidator Report No.20 of 2007.\n<\/p>\n
In
\n\tthese circumstances, there is nothing to indicate that the Company
\n\tCourt, who confirmed the sale of Lot No.B-4 on 05.08.2008 in favour
\n\tof the applicant, was ever informed, in any manner whatsoever, that
\n\tthere were assets other than assets put up for sale and situated at
\n\tthe premises in question, namely, Plot No.10, Revenue Survey No.73,
\n\tVillage Duniya, Taluka Halol, Dist. Panchmahals. Not only that, even
\n\tthe Minutes of Meeting of the sale committee, which are available on
\n\trecord of Official Liquidator Report No.20 of 2007, do not indicate
\n\tany such segregation of plant and machineries as is sought to be
\n\tcontended by the liquidator today.\n<\/p>\n
Company
\n\tApplication No.34 of 2007 was preferred by Sahara Packaging seeking
\n\tpossession of the disputed property on the ground that the said
\n\tcompany had purchased the said property before the company was
\n\tordered to be wound up and hence, by virtue of provisions of Section
\n\t536(2) of the Companies Act, 1956, the said sale was required to be
\n\tvalidated. When one goes through the record of the said proceedings
\n\tit becomes clear that even before Company Application No.34 of 2007
\n\twas preferred the said applicant, namely, Sahara Packaging had
\n\tapproached the Company Court with an earlier application being
\n\tCompany Application No.556 of 2006 which was permitted to be
\n\twithdrawn by the Company Court vide order dated 20.11.2006 to enable
\n\tthe said applicant to prefer an application as required by
\n\tprovisions of Section 536(2) of the Act. The said order which is
\n\tavailable on record of Company Application No.34 of 2007 indicates
\n\tthat learned advocate appearing for the Official Liquidator in the
\n\tpresent proceedings was also representing the Official Liquidator in
\n\tthe said proceedings but attention of Court was not invited to the
\n\tfact that there was either any separate valuation made by treating
\n\tthe property in dispute as property of the Company (in liquidation)
\n\tor that the said property did not belong to Sahara Packaging.\n<\/p>\n
Even
\n\tthereafter, when one considers the reply filed by the liquidator in
\n\tCompany Application No.34 of 2007 at no place has the liquidator
\n\tadopted a stand that the property over which Sahara Packaging is
\n\tmaking a claim was either not forming part of the plant and
\n\tmachinery of the Company (in liquidation) situated at Plot No.10 at
\n\tHalol, or that the said property was treated as a distinct property,
\n\tdistinct from the property described in Lot No.B-4. This aspect has
\n\tto be appreciated in context of the fact that Sahara Packaging had
\n\talso joined Bank of Baroda, a secured creditor  as one of the
\n\trespondents in the said proceedings and along with the
\n\taffidavit-in-reply filed by Bank of Baroda, the relevant Form which
\n\tregistered charge contained description of all the machineries,
\n\tincluding the plant and machinery in dispute, was placed on record
\n\tto show existing charge of Bank of Baroda by treating the said
\n\tproperties as properties of the Company (in liquidation).\n<\/p>\n
In
\n\tthe aforesaid facts and circumstances of the case it is apparent
\n\tthat at no point of time any distinction was drawn in so far as
\n\tplant and machineries of the Halol Unit are concerned, either by the
\n\tsecured creditor or the company before the winding up proceedings,
\n\tand by the liquidator after the commencement of winding up
\n\tproceedings. It is only at a later stage, after Sahara Packaging had
\n\tapproached the Company Court claiming to be owner of the property in
\n\tdispute, that the liquidator has adopted the stand that the said
\n\tproperty did not form part of the property described in Lot No.B-4.\n<\/p>\n
In
\n\tthis context it is necessary to note that the contention raised on
\n\tbehalf of liquidator that the property was put up for sale on  AS
\n\tIS WHERE IS AND WHATEVER THERE IS  basis. Admittedly, the property
\n\tin dispute was part and parcel of the plant and machinery lying at
\n\tthe same premises and, therefore, it is not possible to say that the
\n\tsaid property was not forming part of the properties comprising Lot
\n\tNo.B-4. Similarly, merely because the property in dispute was lying
\n\tslightly away from the property for which the possession had been
\n\thanded over, though on the same plot of land, it would not be a
\n\tfactor to hold that the said property was not put up for sale, more
\n\tparticularly when one considers the description of the property put
\n\tup for sale in Lot No.B-4. At no place does the record indicate,
\n\teither in the Minutes of the Meeting of the sale committee, or the
\n\treport tendered by the Official Liquidator seeking confirmation of
\n\tsale, or in the collateral proceedings of Company Application No.34
\n\tof 2007 that there was a distinct set of machineries which was not
\n\tput up for sale as canvassed by learned advocate in the present
\n\tproceedings.\n<\/p>\n
In
\n\tthe reply filed by the Official Liquidator on 03.12.2009 in Company
\n\tApplication No.425 of 2009 following averments appear in Paragraph
\n\tNo.2:\n<\/p>\n
\t .\n<\/p>\n
\t. . The Plant & Machineries claimed by M\/s. Sahara Packaging (P)
\n\tLtd. was excluded in sale of Lot No.B-4 i.e. Building \/ Civil
\n\tConstruction, plant & machineries and all other movables, since
\n\tthe dispute of ownership of the said machineries was then pending in
\n\tCompany Application No.34 of 2007 filed by M\/s. Sahara Packaging (P)
\n\tLtd. claiming the ownership of the said machineries. . . .\n<\/p>\n
However,
\n\tthere is no evidence in support of the aforesaid averment. In the
\n\tproperty put up for sale by the sale committee one does not find any
\n\tclarification that the particular property was excluded from Lot
\n\tNo.B-4. In absence of any cogent evidence in this regard it is not
\n\tpossible to accept the stand adopted by the liquidator in these
\n\tproceedings at such a belated stage. Factually also this is an
\n\tincorrect proposition as following facts show.\n<\/p>\n
The
\n\tMinutes of Meeting of the sale committee held on 05.12.2006 record
\n\tdecision of sale committee to issue proclamation of sale by grouping
\n\tthe assets of the Company (in liquidation) in different lots. Lot
\n\tNo.B-4 does not indicate any bifurcation. Nor do the minutes
\n\tindicate that at the time of inspection of the properties to be
\n\tconducted on 23.12.2006 different sets of properties should be
\n\tindicated by appropriate means, like placing  a board at the site,
\n\tor a notice. The first time precursor of Company Application No.34
\n\tof 2007 was disposed of on 20.11.2006. As already noted at that
\n\tstage also no such stand (of property being separate) was taken by
\n\tthe liquidator. Company Application No.34 of 2007 was preferred on
\n\t12.01.2007, whereas Official Liquidator Report No.20 of 2007 was
\n\tpreferred on 23.01.2007. As noted in none of those proceedings any
\n\tsuch segregation is pointed out. Hence, the averment in Paragraph
\n\tNo.2 of reply filed on 03.12.2009 by the Official Liquidator in
\n\tCompany Application No.425 of 2009 is factually incorrect.\n<\/p>\n
It
\n\tis an accepted position between the parties, that after the judgment
\n\twas rendered in Company Application No.34 of 2007 the Official
\n\tLiquidator called upon the applicant to make payment of Rs.1.45
\n\tcrores which had been returned by the Official Liquidator pursuant
\n\tto order dated 17.10.2008 made in Company Application No.455 of
\n\t2008. The applicant has made payment of the said sum of Rs.1.45
\n\tcrores on 20.10.2009. Thus, as of today the liquidator has already
\n\treceived the full sale consideration of Rs.1.50 crores considering
\n\tthat the amount of Rs.5,00,000\/- was permitted to be retained by the
\n\tOfficial Liquidator by the Court vide order dated 17.10.2008.\n<\/p>\n
In
\n\tthese circumstances, Company Application No.425 of 2009 is required
\n\tto be allowed, subject to the following directions.\n<\/p>\n
The
\n\tOfficial Liquidator of Motorol (India) Limited, Company (in
\n\tliquidation), is hereby directed to hand over possession of the
\n\tremaining properties comprising Lot No.B-4, situated at Halol plant
\n\tof the company in liquidation at Plot No.10, Revenue Survey No.73,
\n\tVillage Duniya, Taluka Halol, Dist. Panchmahals within a period of
\n\tten working days from 10.02.2010. The applicant shall cart away the
\n\tmachineries within a period of five days from the date of being
\n\thanded over possession (as agreed by the learned
\n\tadvocate of the applicant). Thereafter the applicant
\n\tshall forthwith give written intimation to the
\n\tOfficial Liquidator that entire plant and machinery
\n\thas been removed from the land in
\n\tquestion.\n<\/p>\n
Company
\n\tApplication No.425 of 2009 stands allowed accordingly in the
\n\taforesaid terms with no order as to costs.\n<\/p>\n
 ORDER
\nIN OFFICIAL LIQUIDATOR REPORT NO.6 OF 2010<\/p>\n
\tThe
\n\tOfficial Liquidator has prayed for following reliefs:\n<\/p>\n
\tThis
\n\tHon’ble Court may be pleased to permit the
\n\tOfficial Liquidator to fix up the Upset Price and EMD as
\n\tstated in para-7 herein above, and the
\n\tOfficial Liquidator may also be permitted to invite offers
\n\tfor purchase of assets of the company as per lots described in
\n\tpara-7 of this report by publishing advertisement in Indian Express
\n\tin English Script in Baroda Edition and Gujarat Samachar in Gujarati
\n\tScript in Baroda and Ahmedabad Edition on 09.02.2010.\n<\/p>\n
\tSuch
\n\tother and further orders and directions, as this Hon’ble Court may
\n\tconsider just and appropriate may also be passed.\n<\/p>\n
The
\n\tproperties in question have been described in Paragraph No.7 of the
\n\treport. In light of the order of even date made in Company
\n\tApplication No.425 of 2009, the properties described in Lot ‘C’
\n\twhich is as under cannot be put up for sale and hence, shall stand
\n\texcluded for the purposes of issuance of advertisement and receipt
\n\tof offers for the purpose of sale:\n<\/p>\n
\t‘C- Halol
\n\tPlant  at Plot No.10, R.S. No.73, Village-Duniya, Tal. Halol.’<\/p>\n
Lot<\/p>\n
No.\n<\/p>\n
Description<\/p>\n
Upset
\n\t\t\t\t\tPrice<\/p>\n
(Rs.)<\/p>\n
EMD<\/p>\n
(Rs.)<\/p>\n
C<\/p>\n
Plant
\n\t\t\t\t\t& Machineries claimed by Sahara Packaging Pvt. Ltd.\n<\/p>\n
10<\/span><\/p>\n
\t\t\t\t\tLacs<\/p>\n
1<\/span>
\n\t\t\t\t\tLacs<\/p>\n
Accordingly,
\n\tthe Official Liquidator is directed to put up properties described
\n\tin Lot Nos.A, B and D for sale subject to rescheduling the programme
\n\tfor sale of assets as under:\n<\/p>\n
Date
\n\t\t\t\tof Advertisement<\/p>\n
:\n<\/p>\n
04.03.2010<\/p>\n
Date
\n\t\t\t\tof Issue of Tender Forms<\/p>\n
:\n<\/p>\n
04.03.2010<\/p>\n
Date
\n\t\t\t\tof Inspection of the properties<\/p>\n
:\n<\/p>\n
Gametha
\n\t\t\t\tPlant <\/p>\n
on
\n\t\t\t\t18.03.2010<\/p>\n
Wind
\n\t\t\t\tMill at Rajkot<\/p>\n
18.03.2010<\/p>\n
Motorol
\n\t\t\t\tHouse <\/p>\n
on
\n\t\t\t\t19.03.2010<\/p>\n
Between
\n\t\t\t\t11:30 a.m. and 4:30 p.m.<\/p>\n
Last
\n\t\t\t\tdate of receipt of tender<\/p>\n
:\n<\/p>\n
30.03.2010<\/p>\n
upto
\n\t\t\t\t4:00 p.m.<\/p>\n
Date
\n\t\t\t\tof auction<\/p>\n
:\n<\/p>\n
30.03.2010
\n\t\t\t\tat 5:00 p.m.<\/p>\n
The
\n\treport stands disposed of accordingly.\n<\/p>\n
 ORDER
\nIN COMPANY APPLICATION No.494 of 2009<\/p>\n
This
\n\tapplication seeks following reliefs:\n<\/p>\n
\tThat
\n\tthis Hon’ble Court may be pleased to direct the Official
\n\tLiquidator to forthwith handover possession of land forming
\n\tpart of Lot B-1 and B-2 aggregating to B-3 situate at R.S. No.73,
\n\tVillage: Duniya, Tal. Halol, Dist. Panchmahal, in the interest of
\n\tjustice and equity;\n<\/p>\n
\tThat
\n\tthis Hon’ble Court may be pleased to direct Official
\n\tLiquidator to pay interest on such rate as may be deemed
\n\tappropriate to the applicants on the amount of Rs.4 Crores
\n\tproportionately for not handing over possession of the properties
\n\tcomprising of Lot B-1 and B-2 aggregating to B-3 situate at R.S.
\n\tNo.73, Village: Duniya, Tal. Halol, Dist. Panchmahal and also for
\n\tutilizing the amount of Rs.4 Crores of the applicants without
\n\thanding over possession of the properties, in the interest of
\n\tjustice and equity;\n<\/p>\n
\tThat
\n\tthis Hon’ble Court may be pleased to grant such other and further
\n\treliefs as may be deemed fit and proper by this Hon’ble Court, in
\n\tthe interest;\n<\/p>\n
Heard
\n\tlearned advocates appearing
\n\tfor the respective parties. It is common ground between the parties
\n\tthat properties in the form of land forming part
\n\tof Lot Nos.B-1 and B-2 comprised in the aggregate in Lot No.B-3 are
\n\tof Plot Nos.10 and 8, Revenue Survey No.73, Village Duniya, Taluka
\n\tHalol, Dist. Panchmahals. The dispute today pertains only to a part
\n\tof land, namely, land of Lot No.B-1.\n<\/p>\n
In
\n\tlight of the pending dispute in relation to the movable properties
\n\tlying over the said parcel of land liquidator could not hand over
\n\tpossession of the property in question in the present application.
\n\tToday by a separate order rendered in Company Application No.425 of
\n\t2009 the Official Liquidator has been directed to hand over
\n\tpossession of the movable properties within a period of ten working
\n\tdays from 10.02.2010. Providing for a period of five days from the
\n\tdate of handing over possession for carting away said movable
\n\tmachineries, the Official Liquidator is directed to hand over
\n\tpossession of the land in question within a period of two working
\n\tdays after the applicant of Company Application No.425 of 2009,
\n\tManibhadra Sales Corporation, gives in writing that the entire plant
\n\tand machinery has been removed from the land in question.\n<\/p>\n
Learned
\n\tadvocates have also been heard on the aspect of interest that the
\n\tapplicant would be entitled to on the sum paid for Plot No.10. It is
\n\tan admitted position that the amount of Rs.4 crores was paid by the
\n\tapplicant pursuant to order dated 05.08.2008 for the property
\n\tfalling within Lot Nos.B-1 and B-2, consolidated Lot No.B-3. The
\n\tland comprised in Lot No.B-1 admeasures 21,300 sq. mtrs., whereas
\n\tthe land comprised in Lot No.B-2 admeasures 69,594.12 sq. mtrs.
\n\tAdmittedly land described in Lot No.B-2 was handed over on
\n\t29.08.2008 to the applicant. In these circumstances, the sum of Rs.4
\n\tcrores shall have to be bifurcated into proportionate components in
\n\tthe ratio of the land falling within Lot No.B-1 and Lot No.B-2. The
\n\tsaid ratio works out at 23.43% for Lot No.B-1 and 76.57% for Lot
\n\tNo.B-2. The sum of Rs.4 crores will, therefore, have to be divided
\n\tinto the same ratio. Therefore, the applicant would be entitled to
\n\tinterest only on the sum of Rs.93,73,556\/- (Rupees Ninety Three lacs
\n\tSeventy Three Thousand Five Hundred Fifty Six only).\n<\/p>\n
Thereafter,
\n\tone will have to consider period for which the applicant would be
\n\tentitled to interest. The facts reveal that after being denied
\n\tpossession of property falling within Lot No.B-1, the applicant did
\n\tnot approach the Company Court either for return of the
\n\tproportionate sale consideration, or for being granted possession,
\n\tor for any interest on the proportionate amount so retained. Only
\n\tafter the litigation in relation to the movable property lying on
\n\tthe said plot of land was over vide judgment rendered on
\n\t23.07.2009-06.08.2009 in Company Application No.34 of 2007 and
\n\tcognate matters that the applicant approached the Official
\n\tLiquidator vide communication dated 12.11.2009. It is also necessary
\n\tto note that in the aforesaid group of matters, heard and decided
\n\talongwith Company Application No.34 of 2007, Company Application
\n\tNo.79 of 2009 had been preferred by the present applicant seeking
\n\treturn of the amount of sale consideration. After hearing learned
\n\tadvocate for the applicant the said request was turned down. Only
\n\trelief that was granted was to call back the amount of Rs.4 crores
\n\tfrom the Protho Notary and Senior Court Master, Bombay High Court of
\n\tSuit No.686 of 1998. Thus, the right, if any, to claim interest
\n\taccrued for the first time only on 06.08.2009 when the Court
\n\tpronounced the judgment.\n<\/p>\n
The
\n\tcontention raised on behalf of the applicant that the Official
\n\tLiquidator had enjoyed the use of the fund without possession being
\n\thanded over would have merited acceptance provided the applicant had
\n\tbeen vigilant about his own right since inception. In fact even the
\n\tpresent application has been preferred only on 17.12.2009. In the
\n\tcircumstances, the applicant would not be entitled to any interest
\n\tprior to the said point of time.\n<\/p>\n
However,
\n\tat the same time it is required to be borne in mind that despite
\n\tjudgment rendered on 23.07.2009-06.08.2009 in Company Application
\n\tNo.34 of 2007 and cognate matters liquidator did not take any steps
\n\tto hand over possession within a reasonable time. At the same time
\n\tthe liquidator also failed to point out to the Company Court when he
\n\twas directed to hand over possession of plot of land No.10 vide
\n\torder dated 05.08.2008 within a period of ten days from the date of
\n\treceipt of full sale consideration that such possession could not
\n\thave been handed over as certain machineries were lying on the same
\n\tparcel of land which did not form part of the properties put up for
\n\tsale. Hence, to the said extent even the liquidator has been
\n\tnegligent in discharge of his duties.\n<\/p>\n
Therefore,
\n\tif one balances the equities the applicant may become entitled to
\n\tinterest w.e.f. 01.09.2009 on sum of Rs.93,73,556\/-
\n\t(Rupees Ninety Three lacs Seventy Three Thousand Five Hundred Fifty
\n\tSix only) @ 5% p.a. for the period commencing from
\n\t01.09.2009 and ending on 31.01.2010.\n<\/p>\n
\tLearned
\n\tadvocate has stated that relevant details of applicant’s bank
\n\taccount shall be furnished within a couple of days. The
\n\tOfficial Liquidator shall thereupon ensure electronic
\n\ttransfer of funds of interest amount within five working days from
\n\tthe date of receipt of such details.\n<\/p>\n
\tAccordingly,
\n\tthis Company Application is partly allowed in the aforesaid terms
\n\twith no order as to costs.\n<\/p>\n
Sd\/-\n<\/p>\n
[D. A.\n<\/p>\n
MEHTA, J]<\/p>\n
***<\/p>\n
Bhavesh*<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Manibhadra vs Ol on 8 February, 2010 Author: D.A.Mehta,&Nbsp; Gujarat High Court Case Information System Print COMA\/425\/2009 30\/ 30 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD COMPANY APPLICATION No.425 of 2009 In OFFICIAL LIQUDATOR REPORT No.20 of 2007 =================================================== MANIBHADRA SALES CORPORATION – Applicant(s) Versus OL OF MOTOROL (INDIA) LTD […]<\/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-182240","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nManibhadra vs Ol on 8 February, 2010 - 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\/manibhadra-vs-ol-on-8-february-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Manibhadra vs Ol on 8 February, 2010 - 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