Calcutta High Court
Srei Equipment Finance Limited vs Ambay Coke Industries Private ... on 19 February, 2021
OD-2 & 3
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
IA GA/2/2019
(Old GA/1919/2019)
In EC/135/2019
SREI EQUIPMENT FINANCE LIMITED
Versus
AMBAY COKE INDUSTRIES PRIVATE LIMITED
IA GA/1/2019
(Old GA/1604/2019)
In EC/135/2019
SREI EQUIPMENT FINANCE LIMITED
Versus
AMBAY COKE INDUSTRIES PRIVATE LIMITED
BEFORE:
The Hon'ble JUSTICE ARIJIT BANERJEE
Date : 19th February, 2021
Appearance:
Mr.Swatarup Banerjee, Adv.
Mr.Supratim Laha, Adv.
Mr.Balaji Chakraborty, Adv.
Mr.Manas Das, Adv.
Mr.Anupam Dasadhikari, Adv.
The Court : By an order dated June 24, 2019, the sale of the assets in
question was confirmed in favour of one M/S. Balaji International Traders
(in short 'Balaji').
The sale was so confirmed in favour of Balaji in view of one Rama
Das, who was initially the highest bidder, failing to deposit the entire sum of
money within the stipulated time period or even the extended time period.
An application was subsequently taken out by Rama Das being GA
No.1604 of 2019 for recalling of the order dated June 24, 2019 and
confirmation of sale of the assets in question in her favour; alternatively, for
refund of the sum of Rs.26 lakhs deposited by her as earnest money with
the Receiver. On such application, an interim order was passed on July 19,
2019, directing that no further steps be taken in respect of the sale of the
assets in question and to that extent, the order of confirmation of sale in
favour of Balaji was directed to remain stayed. The Official Liquidator was
directed to file an affidavit disclosing all material particulars in view of a
controversy having been raised by him that the assets in question do not
belong to the judgment-debtor but to one Bhoomi Minerals Limited, a
company-in-liquidation (in short 'Bhoomi').
Subsequently an application was taken out by the decree-holder being
GA No. 1919 of 2019 for recalling of the order dated July 19, 2019 passed in
GA No. 1604 of 2019; for a direction for refund of the amount of Rs.26 lakhs
to Rama Das and for a direction on the Official Liquidator to permit handing
over possession of the assets in question to Balaji or its representative
Amrish Daga.
I have heard the two applications analogously - one for recalling of the
order dated June 24, 2019 and the other for recalling of the order dated
July 19, 2019.
Sufficient opportunity was given to Rama Das to put in the entire
purchase price. After she failed initially, time was extended for putting in
the money. She again failed. Under those circumstances, the sale came to
be confirmed in favour of Balaji. Today, there is no reason to give any
further opportunity to Rama Das to pay the balance price. Some degree of
definitiveness and finality must attach to a Court sale. No party can at his
or her sweet will come at his or her chosen point of time to say that he /she
is willing to pay more and therefore, the sale that is already confirmed in
favour of another party, should be set aside. Given that Rama Das has
failed twice to put in the requisite money and also in view of the fact that
the sale stands confirmed in favour of Balaji by an order that was passed on
June 24, 2019, I am not inclined to interfere with such order of
confirmation. The application of Rama Das being GA No. 1604 of 2019 fails
to the extent the applicant therein prays for setting aside of the sale
confirmed in favour of Balaji.
I am told that the Receiver has handed over the money received from
Rama Das to the decree-holder. The decree-holder shall within seven days
hand back such money to the receiver who shall then immediately and
within three days of receipt of such money from the decree-holder, pay back
the money to Rama Das.
The order dated July 19, 2019, staying the sale in favour of Balaji was
prompted by the claim raised by the Official Liquidator that the assets in
question belong to a company-in-liquidation called 'Bhoomi' and not to the
judgment-debtor. Hence, those assets cannot be sold in execution of an
award obtained against the judgment-debtor. The Official Liquidator claimed
that the assets were lying at a premises which belongs to the company-in-
liquidation.
From time to time this Court called upon the Official Liquidator to
disclose documents by filing affidavit showing that the assets in question
belong to Bhoomi. The Official Liquidator has not been able to produce any
such document. Although an affidavit has been filed by the Official
Liquidator, the same does not establish Bhoomi's ownership of the assets in
question. Accordingly, a further affidavit was called for from the Official
Liquidator.
Today, a letter dated February 1, 2021 written by the Assistant
Official Liquidator to the decree-holder has been placed before me by
learned Advocate for the Official Liquidator wherein it is stated in no
uncertain terms that the Official Liquidator has no document in his
possession to show that Bhoomi is the owner of the assets in question.
Hence, nothing is forthcoming before this Court to show that Bhoomi is the
owner of the assets in question.
In my order dated January 6, 2021, I had recorded that the decree-
holder has produced documents which show that the assets belong to the
judgment-debtor. On that date, a secured creditor of the company-in-
liquidation, i.e., ARCIL had appeared through Advocate and had obtained
leave to file supplementary affidavit limited to the question of ownership of
the assets in question. No such affidavit has been filed by ARCIL. ARCIL is
not represented in Court today.
In the aforesaid facts and circumstances and going by the documents
disclosed by the decree-holder, I am of the view that the ownership of the
assets in question can no more be disputed. The judgment-debtor appears
to be the owner of the assets in question. Such assets were sold to Balaji in
a Court sale. The decree-holder is holding the cheques issued by Balaji
without encashing them in view of the pendency of these proceedings. There
is no reason to put a spanner in the whole procedure of sale of the assets in
question. The order dated July 19, 2019, to the extent it stayed the sale of
the assets in question in favour of Balaji, stand vacated. The Official
Liquidator shall permit handing over of the assets in question to Balaji/ its
authorized representative by the Receiver.
Let this exercise be completed within a period of seven days from the
date of service of a copy of this order on the Official Liquidator.
Learned Advocate for the Official Liquidator submits that at the
instance of the secured creditor of the company-in-liquidation, i.e., ARCIL,
the Official Liquidator withheld possession of the assets in question and did
not permit handing over of the assets to Balaji. For the purpose of
protecting the assets in question, the Official Liquidator had to deploy
security personnel and had to bear their costs. The Official Liquidator
should be permitted to recover such costs from ARCIL.
I have considered such submission. It is a matter between the Official
Liquidator and ARCIL. If the withholding of possession by the Official
Liquidator of the assets in question and consequent necessity of protecting
the same by deploying security personnel was at the instance of ARCIL, in
all fairness, ARCIL should bear the expenses incurred by the Official
Liquidator for such purpose.
IA GA No. 2 of 2019 (Old GA No.1919 of 2019) and GA No. 1 of 2019
(Old GA No. 1604 of 2019) are accordingly disposed of. All other connected
applications being GA No.3 of 2020 and GA No.4 of 2020 are treated as on
day's list and the same are also disposed of accordingly.
(ARIJIT BANERJEE, J.)
D.Ghosh
