Capt. Gavin Squeira And 36 Ors vs M. V. Malaviya Thirty Six
2022 Latest Caselaw 5663 Bom

                                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                                             ORDINARY ORIGINAL CIVIL JURISDICTION

                                             INTERIM APPLICATION NO. 1819 OF 2021

                                                              IN

                                                COMMERCIAL SUIT NO. 840 OF 2017



                      Capt. Gavin Sequeira & 36 Ors.                    ...     Applicants/Plaintiffs.
                               vs.
                      M. V. Malaviya 36                                 ...    Respondent/Defendant



                      Mr. Shyam Kapadia a/w. Mr. Pabitra Dutta i/b. M/s. Bose & Mitra & Co. for the
                      Applicants/Plaintiffs.
                      Mr. Prathamesh Kamat for Official Liquidator.
                                                                CORAM : A. K. MENON, J.

DATED : 21st JUNE, 2022

P.C. :

1. By this interim application the applicants claim a summary judgment

in terms of prayer clause (a) and seek a decree for a sum of Rs.5,57,75,683/-.

The applicant also claims interest @ 18% p.a. It is not in dispute that the

Liquidator has filed an affidavit. Last of these affidavits is dated 4 th March,

2022 sets out admissible amount of the net salaries computed after

examination of the accounts with the help of Chartered Accountants

RAJESHWARI appointed by the Official Liquidator pursuant to an order dated 20 th October, RAMESH PILLAI Digitally signed by RAJESHWARI RAMESH PILLAI

Date: 2022.06.22 23-IA-1819-2021-COMS-840-2017.odt rrpillai 16:29:56 +0530 2021. The Liquidator has set out in Exhibit D to the said affidavit the names

of the 36 claimants, address, rank, total amount due and the amounts

admitted. There is a dispute as to the amounts deducted and retained by the

company in liquidation.

2. Mr. Kamat today states that salary slip itself discloses that certain

amounts disclosed as and by way of sample shown in Vol II Page 285 Mr.

Gavin L. Sequeira, Master of the vessel. He therefore submits that further

inquires will have to be made to ascertain the nature of these deduction /

retention. Mr. Kamath is confident that these are not Tax Deducted at Source.

However he seeks time to ascertain the exact nature of these retained

amounts. In the meantime he submits to a decree in terms of the amount that

is computed in Exhibit D.

3. Plaintiffs therefore seek to proceed on that basis to claim a sum of

Rs. 3,46,49,157/- with liberty to apply after seeking inspection of the records

of the company to the extent it concerns the plaintiffs claim and to ascertain

why these amounts are deducted / retained. Accordingly I pass the following

order :

(i) Interim Application is made absolute in terms of prayer clause (b) to

the extent of Rs. 3,46,49,157/- along with interest @ 6% till date of winding

up.

23-IA-1819-2021-COMS-840-2017.odt rrpillai

(ii) The plaintiff shall file undertakings to repay the amounts received by

them to pay back amount received from the Gard P & I Club.

(iii) The Liquidator is directed to file a report on the state of the account

with full particulars as to the accounting package used by the company in

liquidation and if necessary employ suitable forensic experts to make the

account package accessible by the Chartered Accountant already appointed

M/s. S. M. Pradhan & Co. who may be re-engaged by the liquidator for that

purpose. Report to be filed within eight weeks from today.

(iv) Interim Application disposed in the above terms with liberty to apply.

(v) All rights of the plaintiffs are kept open.

(A. K. MENON, J.)

23-IA-1819-2021-COMS-840-2017.odt rrpillai