Calcutta High Court
M/S.Kotak Mahindra Bank Limited vs M/S.Saumya Mining Limited on 8 July, 2022
1
OD-8
RVWO/4/2016
ACO/1/2016
(OLD NO.ACO/14/2016)
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE
M/S.KOTAK MAHINDRA BANK LIMITED
VS
M/S.SAUMYA MINING LIMITED
BEFORE:
The Hon'ble JUSTICE ARIJIT BANERJEE
The Hon'ble JUSTICE RAI CHATTOPADHYAY
Date : 8th July, 2022.
Appearance:
Mr.Vikram Wadekar,Advocate
Ms. Vidushi Chokhani,Advocate
...for petitioner.
Mr.Rohit Das,Advocate
Mr.K.Rounak,Advocate
Mr.Preetam Majumdar,Advocate
Mr.Pranit Biswas,Advocate
....for respondent.
THE COURT: This application has been filed for review of an order
dated 20th April, 2015 passed in ACO 38 of 2015.
The review petitioner (in short "Bank") says that it had entered into
a financial agreement with the respondent/company whereunder large
sums of money were advanced to the respondent. Upon the respondent
failing to repay such loan, the bank filed a winding up petition against
the company being C.P.No.953 of 2014. The winding up petition was,
however, dismissed. The bank filed an appeal being APO 41 of 2015.
By an order dated February 17, 2015, the appeal was disposed of.
The operative portion of the said order reads as follows:-
"While giving reply, Mr.Ghosh would volunteer not to press his
winding up petition of Rs.5.6 crores approximately on account
of overdue interest and other charges as claimed in the
petition reserving his liberty to approach the appropriate
authority for recovery of the same. He would contend, the
principal sum would have no defence.
Considering the rival contentions, we allow the appeal in part.
The judgment and order impugned herein is set aside. The
winding up petition would be restricted to Rs.41,75,100.75 to
be remanded back to His Lordship for being heard afresh.
Learned Counsel appearing for the respondent prays for two
weeks' time to file affidavits. Let affidavit-in-opposition be
filed within two weeks; reply if any, within one week
thereafter. The parties would be at liberty to approach His
Lordship for an early date of hearing after completion of
affidavits.
With regard to the balance claim, the parties would be at
liberty to approach the appropriate forum in accordance with
law."
Subsequently, the bank approached the Appeal court contending
that a sum much in excess of Rs.41,75,100.75 was, in fact, due and
payable by the company to the bank on account of principal. It was due
to communication gap between the bank and its Advocate that an
incorrect submission had been made on the day the order dated 17th
February, 2015 was passed to the effect that the dues of the bank on
account of principal was only Rs.41,75,100.75.
The bank prayed for suitable modification of the order dated
February 17, 2015. The modification application was disposed of by the
order dated April 20, 2015 which is under review in the present
application. The operative portion of the said order reads as follows:-
"The appellant volunteered not to press their winding up
petition for the balance amount over and above
Rs.41,75,100.75. On that basis, we allowed the appeal in part
on concession. We also permitted them to proceed before the
appropriate forum against the balance claim. If there was any
further sum due on account of principal that was included in
the sum of Rs.5.6 crores, the appellant would be at liberty to
approach the appropriate forum, for that we need not modify
our order. We make it clear, the winding up petition would be
proceeded with in respect of Rs.41,75,100.75 as contended by
the applicant so recorded in the order dated February 17,
2015.
The application is disposed of without any order as to costs."
Learned Advocate for the review petitioner, i.e. bank, says that
proceedings are pending before the Debts Recovery Tribunal. The bank is
facing undue difficulty in establishing that its dues on account of
principal are more than Rs.41,75,100.75 by reason of this Court's orders
dated February 17, 2015 and April 20, 2015.
Learned Advocate has referred to the audited Balance-Sheet of the
company for the year ended on 31st March, 2015 to demonstrate that the
company itself has admitted in that Balance-Sheet that it owes a sum in
the region of Rs.3.91 Crores to the bank on account of principal.
Be that as it may, we are not concerned with how much is actually
due from the company to the bank. We only clarify that if the bank can
demonstrate before any forum, on the basis of acceptable documents,
that its claim against the company on account of principal is more than
Rs.41,75,100.75, then the orders dated February 17, 2015 and April 20,
2015 passed in APO 41 of 2015 shall not stand in the way of such forum
adjudicating such claim of the bank in accordance with law.
The company's learned Advocate says that the bank failed to
disburse the promised amount by reason of which the company could
not purchase the machinery which had been agreed to be financed by the
bank. This is strongly disputed by learned advocate appearing on behalf
of the bank. In any event, we are not concerned with such dispute.
Accordingly, the RVWO/4/2016 along with ACO/1/2016 are
disposed of .
(ARIJIT BANERJEE, J)
(RAI CHATTOPADHYAY, J.)
ssaha
AR(CR)
