Calcutta High Court
Shiva Shakti Security Services vs Official Liquidator And Anr on 21 February, 2022
ORDER SHEET
OD-1
APOT/19/2022
WITH
CP/77/2012
CA/13/2019
IA NO:ACO/1/2022, ACO/2/2022
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE
FORTUNE FURNITECH PVT. LTD.(IN LIQN.)
AND
SHIVA SHAKTI SECURITY SERVICES
VS.
OFFICIAL LIQUIDATOR AND ANR
BEFORE:
The Hon'ble JUSTICE I. P. MUKERJI
The Hon'ble JUSTICE ANIRUDDHA ROY
Date : 21st February, 2022
(Via Video Conference)
Appearance:
Mr.Soumya Roy,Adv.
Mr.Arindam Paul, Adv.
Ms. Parna Mukherjee, Adv.
For appellant
Mr.Avishek Guha, Adv.
Mr. Karan Keswani, Adv.
For respondent no.2
Mr. Niloy Sengupta, Adv.
For petitioning creditor
Ms. Smita Das De, Adv.
For official liquidator
The Court : We admit this appeal from the judgment and order of the
learned single judge dated 5th January, 2022 without passing an order on the
application and transferring the company proceedings to the National
Company Law Tribunal, Kolkata.
The facts are these.
The company went into liquidation by an order of this court dated 3rd
May, 2013. On or about 7th December, 2013 this court, inter alia, appointed a
security agency to provide security guards to safeguard the assets of the
company (in liquidation). It is submitted that after engagement of the security
guards their payments were being made by the secured creditor or by the
Official Liquidator and reimbursed by the secured creditors. Up to 2019, about
Rs.26 lakhs were paid to the security agency in this way.
As of now their dues are about Rs.1,12,30,874/-.
The question which arises in this appeal is whether this court is
competent to pass directions for payment of those dues or should the
proceedings be transferred to the National Company Law Tribunal, Kolkata for
passing appropriate orders as directed by the learned single judge ?
This is a jurisdictional issue and quite a substantial point of law has
been raised. It is argued on behalf of the appellant security agency supported
by the Official Liquidator that directions for this payment ought to be passed
by this court. Learned counsel for the secured creditor, however, has argued to
the contrary stating that this court no longer retains jurisdiction to pass any
order in the matter.
This question has to be decided in the appeal.
We propose to hear out this appeal expeditiously, dispensing with all
formalities.
As the respondents are represented by learned counsel, issuance and
service of the notice of appeal are dispensed with. Learned advocate-on-record
for the appellant is directed to file an informal paper book by 11th March, 2022
serving a copy thereof upon learned advocate-on-record for the respondents,
not less than three days before the date of hearing of the appeal.
List the appeal for hearing on 21st March, 2022.
Under the proviso to section 529(2) of the Companies Act a secured
creditor is liable to reimburse the Official Liquidator of the expenses incurred
for protection of his security.
Since the security guards were deployed to protect secured creditors'
secured assets, unquestionably they have liability to pay for the expenses
incurred for such protection.
In that view of the matter, pending hearing of the appeal the secured
creditor Asset Reconstruction Company of India Limited shall deposit a sum of
Rs.1,12,30,874/- with the learned Registrar, Original Side by 8th March, 2022.
The learned Registrar will invest the said sum in a term deposit with a
nationalised bank earning the highest rate of interest upon intimation to the
parties. This deposit will be made without prejudice.
We stay the operation of the order relating to transfer of the proceedings
to the National Company Law Tribunal, Kolkata.
This order is made against the Asset Reconstruction Company Limited on
the submission made by learned counsel for the Official Liquidator that till
date all payments for direction of the security have been made by this
organisation.
The applications being (IA NO: ACO/1/2022, ACO/2/2022) are disposed
of.
(I. P. MUKERJI, J)
(ANIRUDDHA ROY , J)
sb.
