Calcutta High Court
M/S M.S. Glass Industries Limited ... vs Unknown on 25 March, 2022
OD-1
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE
APOT/52/2022
With
CP/1127/2014
IA No. ACO 1 of 2022
IN THE MATTER OF:
M/S M.S. GLASS INDUSTRIES LIMITED (IN LIQN)
AND
IN THE MATTER OF:
MODERN SAFEGUARD (MP) PVT LTD.
-VS-
THE O/L AND ANR
Before:
The Hon'ble Justice I. P. MUKERJI
And
The Hon'ble Justice ANIRUDDHA ROY
Date: 25th MARCH, 2022
(Via Video Conference)
Appearance:
Mr. Debrup Bhattacharjee, Adv.
Mr. Ritesh Kumar Ganguly, Adv.
For the Appellant.
Mr. Vikash Singh, Adv.
Mr. Rahul Sharma, Adv.
For the Respondent No. 2.
Ms. Smita Das De, Adv.
For the Official Liquidator.
The Court : We admit this appeal from the judgment and order
of the learned single judge dated 20th January, 2022 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 5th August, 2015. On or about 31st August, 2015 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.
As of now their dues are about Rs.42,83,569/-.
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 28th March, 2022 serving a copy thereof
upon learned advocate-on-record for the respondents.
List the appeal for hearing on 29th 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.42,83,569/- with the learned Registrar,
Original Side by 4th April, 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 providing security have been
made by this organisation.
The application (IA No: ACO/1/2022) is disposed of.
(I. P. MUKERJI, J.)
(ANIRUDDHA ROY, J.)
cs.
