Edelweiss Asset Reconstruction ... vs Sublime Agro Limited And Anr
2021 Latest Caselaw 16768 Bom

GANESH
SUBHASH                                                                   8-IA(L)-22506-2021.doc
LOKHANDE
Digitally signed by
GANESH SUBHASH
LOKHANDE                          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Date: 2021.12.04
16:58:46 +0530
                                         ORDINARY ORIGINAL CIVIL JURISDICTION

                                         INTERIM APPLICATION (L) NO.22506 OF 2021
                                                          IN
                                            COMPANY PETITION NO.960 OF 2009

                      Edelweiss Asset Reconstruction Company Limited                   .. Applicant


                      IN THE MATTER BETWEEN:
                      Sublime Agro Limited                                             .. Original
                                                                                       Petitioner
                                  Vs.
                      Indage Vinters Limited &
                      Edelweiss Asset Reconstruction Company Ltd.                      .. Original
                                                                                       Respondent


                      Mr.Ashish Kamat a/w. Nikhil Rajani i/b. Y. Deshpande & Co. for the
                      Applicant.
                      Mr.Aditya Pimple a/w. Mahendhar Aithe for the Official Liquidator is
                      present.


                                                     CORAM :- B.P.COLABAWALLA, J.

                                                     DATE     :- 3rd DECEMBER, 2021.

                      P. C.:

1. The above Application has been filed seeking the following

reliefs:

"a. This Hon'ble Court be pleased to grant the leave and necessary permission to the Applicant to appoint M/s. ONIV Beverages

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Private Limited as custodian for being put into possession of the factory premises of the Original Respondent/ Company (in Liquidation) for initial period of 9 months with the grace period upto 3 months thereafter on such terms and conditions as may be mutually agreed upon between the Applicant and the said M/s. ONIV Beverages Private Limited and on such terms as this Hon'ble Court may deem fit and proper;

b. That this Hon'ble Court be pleased to grant leave and necessary permission to the Applicant to put M/s. ONIV Beverages Private Limited in possession of the factory premises of the Original Respondent/Company (in Liquidation) and more particularly described in Exhibit "A" hereto for initial period of 9 months with a right to extend for a period upto 3 months thereafter, purely on custodian basis for enabling the said Purchaser, M/s. ONIV Beverages Private Limited to undertake the necessary processes and measures to make the stock of wine fit for human consumption and for onward selling of the stock by paying necessary dues as per applicable Excise/VAT rules at the time of such onward sale;

c. That this Hon'ble Court be pleased to direct the Official Liquidator to provide to the Applicant the details of Workmen & EPF claims (along with relevant supportings), as adjudicated by you, to share appropriate recoveries out of the value released from the proposed sale"

2. Mr.Kamat, the learned advocate appearing on behalf of the

Applicant submitted that these reliefs are necessitated because some of

the hypothecated movables are bulk wine in tanks, wine in bottles, dry

goods like empty bottles, lables, corks etc. as more particularly

described in Exhibit "B" to the Interim Application. He submitted that

the aforesaid wines have to be curated before they are sold to the

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purchasers M/s. ONIV Breverages Private Limited. It is for this reason

that permission is sought to appoint the said purchaser as the custodian

for being put in possession of the factory premises of the Company (In

Liquidation) for the initial period of 9 months with a grace period of up

to three months thereafter and on such terms and conditions as may be

mutually agreed upon between the Applicant and the said purchasers.

3. As far as prayer clause (c) is concerned, Mr.Pimple, the

learned advocate appearing on behalf of the Official Liquidator has

stated that the Official Liquidator has already provided to the Applicant

the details of the claims of the workmen as well as the details of the

Employees Provident Fund Claims. The relevant supporting documents

have not been provided. Mr. Pimple stated that the Applicant can take

inspection of the same as well as take copies thereof at the costs of the

Applicant. Once this statement is made, prayer Clause (c) does not really

survive.

4. Mr.Pimple though not consenting to the relief sought in

prayer Clauses (a) & (b) did not seriously oppose the same. He stated

that if the Court is inclined to grant reliefs in terms of prayer Clauses (a)

& (b), then the same should be subject to the following terms and

conditions:

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                                                       8-IA(L)-22506-2021.doc

(i) The Applicant will strictly adhere to the provisions of SARFAESI Act, while disposing of the properties mentioned in the Exhibit B to the Application and will give the requisite notices to the Official Liquidator, as it would have been required to be done to the borrower namely, the Company (In Liquidation);

(ii) The Applicant be directed to submit a duly notarised undertaking to the Official Liquidator to bring back the proportionate share of the amount due to the workmen under Section 529A of the Companies Act, 1956 and also the Provident Fund dues as per the Judgment passed by the Supreme Court in the matter of Employees Provident Fund Commissioner V/s. Official Liquidator of Esskay Pharmaceutical (2011) 10 Supreme Court Cases 727 as and when demanded by the Official Liquidator;

5. Mr. Kamat, the learned advocate appearing on behalf of the

Applicant has fairly stated that the Applicant will strictly comply with

the conditions sought for by the Official Liquidator and reproduced by

me above.

6. After hearing the parties and considering that Mr.Kamat,

has stated that the Applicant shall strictly comply with the conditions as

required by the Official Liquidator, the following order is passed:

(i) The Interim Application is allowed in terms of prayer Clause

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(a) and (b) reproduced earlier;

(ii) While disposing of the security of the Applicant as described in

Exhibit "B" to the Application, the Applicant shall strictly

adhere to the provisions of the SARFAESI Act by giving the

requisite notices to the Official Liquidator;

(iii) Within a period of two weeks from today, the Applicant shall

submit a duly notarised undertaking to the Official Liquidator

to bring back the proportionate share of the amount due to the

workmen under Section 529 (A) of the Companies Act, 1956

and also the Provident Fund dues, if any, as per the Judgment

passed by the Supreme Court in the matter of Employees

Provident Fund Commissioner v/s. Official Liquidator of

Esskay Pharmaceutical (2011) 10 Supreme Court Cases 727.

7. The above Interim Application is disposed of in the

aforesaid terms. However, there shall be no order as to costs.

8. All parties to act on an authenticated copy of this order

digitally signed by the Personal Assistant /Private Secretary/Associate

of this Court.

                                           (B. P. COLABAWALLA, J.)




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