Sourav Chandidas Ganguly vs Percept Talent Management Ltd. ...
2021 Latest Caselaw 14972 Bom

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                   ORDINARY ORIGINAL CIVIL JURISDICTION

                 INTERIM APPLICATION (L) NO. 14042 OF 2021

                 INTERIM APPLICATION (L) NO. 17456 OF 2021

                        GARNISHEE (L) NO. 20243 OF 2021

                 INTERIM APPLICATION (L) NO. 19336 OF 2021

                                          IN

         COMMERCIAL EXECUTION APPLICATION (L) NO 13320 OF 2021



Sourav Chandidas Ganguly                                    ...        Applicant
         vs.
Percept Talent Management Ltd & Anr.                        ...    Respondents


Dr. Birendra Saraf, Senior Advocate, a/w. Mr. Ishwar Nankani, Mr. H. S.
Khokhawala and Mr. Vaibhav Charalwar i/b. M/s. Nankani & Associates for
the Applicant.
Mr. Shardul Singh a/w. Mr. Parag Khandhar and Ms. Saloni Shah, i/by DSK
Legal, for Judgment debtors.
Mr. Dipesh Siroya for Garnishee nos. 2 and 3.


                                           CORAM : A. K. MENON, J.

DATED : 13th OCTOBER, 2021.

P.C. :

1. Pursuant to the order passed on 22 nd September,2021 Dr. Saraf points

out that Advocates for the applicant have received a communication on 27 th

10-IAL-14042-2021-COMEXL-13320-2021.odt rrpillai September,2021 from HDFC Bank confirming compliance with sub-clauses

(ii) and (iii) of paragraph 6 of the order. A fixed deposit has been created in a

sum of Rs. 54,51,568/- in terms of the order. The deposit is to be held in the

name of the judgment debtor no. 2 and this was required to be intimated to

the Prothonotary and Senior Master. This having been done, a copy of the

fixed deposit receipt is also made available and that reveals the aforesaid sum

has been invested for a period of 12 months and one day. The request on

behalf of the applicant today is that this amount be brought into court to the

credit of the Execution Application.

2. A grievance is made on behalf of the applicants that the judgment

debtor no. 2 is entitled to receive sums under an Event Management Services

Agreement dated 6th January, 2014 entered into between the Governor of

Goa through The Organising Committee Lusofonia Games 2014, Goa

represented by Mr. Prasad Lolayekar, FA, Head Ceremonies. Mr. Singh on

behalf of the judgment debtor points out that the organising committee is

established by Government of Goa as set out in Recital (b) of the aforesaid

Event Management Services agreement.

3. In the meanwhile the additional affidavit sought to be filed by

garnishee no. 2 and 3 has been tendered in court today. Mr. Siroya states that

both garnishees have instructed him to enter appearance. Mr. Siroya

10-IAL-14042-2021-COMEXL-13320-2021.odt rrpillai undertakes to enter appearance on behalf of the garnishee within one week

from today. He seeks leave to file vakalatnama on behalf of Garnishee nos. 2

and 3.

4. Mr. Siroya submits that Garnishee no. 2 is facing financial difficulties.

He has invited my attention to the affidavit of Manoj Kumar Patra, Chief

Financial Officer of the company. The deponent has disclosed bank accounts

wherein collectively a sum of Rs.1,99,40,519/-is to the credit of the company.

The balance available is as on 22nd September, 2021. Of these amounts a

sum of Rs. 54,51,568/- has now been secured by way of fixed deposit on 24th

September, 2021. Thus a net amount of over Rs. 1,44,88,951/-

approximately still lies to the credit of the company. Notwithstanding this

Mr. Siroya has contended that the company is unable to pay salary. In fact

unpaid salaries in a sum of Rs.2,89,71,300/- is overdue for the last six to

eight months. It is also contended that a sum of Rs. 2,03,04,167/- due to ex-

employees is said to be outstanding for two to three years. Statutory dues are

about Rs. 57,79,320/-. I find that at least Rs. 1,44,88, 951/- seems to be

available to the company part of these monies could have been used to pay

salaries, etc. but the company appears to have chosen not to do so.

5. Mr. Siroya has submitted that the loans from various group companies

amounting to Rs. 38.67 crores are still outstanding and financial losses

incurred during 2019-20 amounts to Rs. 4.39 crores. He has thus painted a

10-IAL-14042-2021-COMEXL-13320-2021.odt rrpillai very bleak picture of the company's finances and has submitted that the

pandemic has only worsened things. He therefore submitted that the sum of

Rs. 54,51,568/-is very much required for survival of the company and

therefore seeks to pay amount of Rs. 54,51,568/-in installments.

6. Considering the averments in the affidavit supported by the annexures

it appears that the company-the deponent has made a fair disclosure since I

have heard nothing contrary from the applicants, save and except that by

way of journal entry on 30th September, 2021 one week after the last order

was passed on 22nd September,2021, the Garnishee no. 2 has debited the

account with a sum of Rs. 66,89,244/-. No explanation is forthcoming in the

affidavit as to why this debit was made and why it was done post the passing

of the order and prior to the date of hearing fixed on 13 th October, 2021.

7. Mr. Siroya is unable to explain this entry and the reasons for entry

being made after passing of the order on 22 nd September,2021 and before

date of hearing today. Prima facie it would appear that this unexplained

entry is one more attempt on behalf of the garnishee to comply with the

requests of the judgment debtor. It is certainly not a bonafide attempt to pay

dues of the creditors.

8. In these circumstances I am not persuaded to believe that the

garnishee no. 2 is not in a position to pay the amount that is owing to the

10-IAL-14042-2021-COMEXL-13320-2021.odt rrpillai judgment debtor at least to the extent of Rs. 51,54,568/-. That amount will

have to be secured. Accordingly as far as this amount is concerned it will

have to be brought into the court towards part satisfaction of the award. That

leaves the journal entry that has not been explained in the affidavit. On

behalf of the applicant it is contended and justifiably so, that the garnishee

must offer its explanation for having carried out this adjustment after passing

of the order dated 22nd September, 2021 and accordingly the company will

have to be directed to do so.

9. As far as garnishee no. 3 is concerned an affidavit of Manuj Agarwal,

Director of Percept Live Private Limited has been filed and that discloses bank

accounts with a collective credit balance of Rs.1,00,299/-. It also discloses

trade receivables of Rs.22,11,89,561/- out of which a sum of

Rs.19,91,34,908/- is shown to be doubtful debts. Mr. Siroya was requested to

furnish particulars of these doubtful debts in terms of identity of the debtors

and the amount thus owing from them. In the course of submissions Mr.

Siroya has provided the court with a list of trade receivables as on 31 st

March,2021. This contains a column of provision made for doubtful debts

and an amount of Rs.19,91,34,908/- as reflected at the foot of that statement.

When queried as to why these are shown as doubtful debts, there is no

explanation forthcoming but it is submitted that all trade receivables are

hypothecated to New India Co-operative bank Limited which bank is said to

have classified the account of garnishee no. 3 as a non-performing asset.

10-IAL-14042-2021-COMEXL-13320-2021.odt rrpillai

10. Be that as it may, as on date the balance recoverable is shown as Rs.

49,45,631/- after giving credit for a sum of Rs.1,71,09,022/- already

received. The chart handed over today discloses that a sum of Rs.29,25,459/-

is receivable from Percept Live Music Limited and a sum of Rs. 16,57,444/-.

from Sony Music Entertainment India Private Limited

11. Accordingly, I pass the following order :

(i) Mr. Siroya is directed to file vakalatnama on behalf of defendant nos. 2

and 3 within one week from today.

(ii) Applicants Advocates are directed to address a communication to the

Secretary, Government of Goa seeking appropriate direction, if monies, if any

payable to the Government of Goa. Liberty to apply after service of such

notice.

(iii) Additional affidavit shall be filed by Garnishee no. 2 explaining on

what account this adjustment of Rs. 66,89,244/- was made. All particulars

shall be furnished in that additional affidavit. Additional affidavit to be filed

within two weeks from today.

(iv) Receivables of Rs. 29,25,459/- and Rs. 16,57,444/- shall be collected

by garnishee no. 3 and shall be deposited in this court within a period of

eight weeks from today. .

10-IAL-14042-2021-COMEXL-13320-2021.odt rrpillai

(v) HDFC , Worli, Sandoz House branch is meanwhile directed to remit a

sum of Rs.54,51,568/- after encashing the fixed deposit to the Prothonotary

and Senior Master within a period of one week from being served with a

certified copy of this order.

(vi) Prothonotary and Senior Master shall upon receipt of this amount

invest the same with a nationalised bank initially for a period of three months.

Liberty to apply after the amount is deposited.

(vii) Liberty to apply after service of such notice.

(A. K. MENON, J.)

Digitally signed by RAJESHWARI RAJESHWARI RAMESH RAMESH PILLAI PILLAI Date:

2021.10.14 19:34:29 +0530

10-IAL-14042-2021-COMEXL-13320-2021.odt rrpillai