Calcutta High Court
Kanti Commercial Private Limited vs Dunlop India Limited & Anr on 10 March, 2022
IA No. ACO 2 of 2022
with
APO No. 65 of 2013
CP No. 233 of 2008
RVWO No. 3 of 2021
IN THE HIGH COURT AT CALCUTTA
In appeal from its
ORIGINAL JURISDICTION
CIVIL APPELLATE JURISDICTION
Kanti Commercial Private Limited
Versus
Dunlop India Limited & Anr.
Before:
The Hon'ble Justice I. P. MUKERJI
And
The Hon'ble Justice ANIRUDDHA ROY
Date: 10th March 2022
Appearance:
Mr. Chayan Gupta, Advocate
Mr. Soumyajyoti Nandy, Advocate
Mr. Niladri Banerjee, Advocate
Mr. Ashutosh Singh, Advocate
Mr. Dipankar Thakur, Advocate
for the applicant
Mr. Tilok Kr. Bose, Sr. Advocate
Mrs. Smita Das De, Advocate
Mr. Anupam Das Adhikari, Advocate
for Official Liquidator
Mr. Jishnu Saha, Sr. Advocate
Mr. Surojit Dasguptga, Advocate
Mr. Pratik Ghose, Advocate
Mr. Abhishek Roychowdhury, Advocate
for SMIFS Capital
Mr. Paritosh Sinha, Advocate
for the State
Mr. Madhusudhan Sarkar, Advocate
Mr. Dipanjan Datta, Advocate
Mr. Sayan Dutta, Advocate
Mr. Subhojit Chowdhury, Advocate
for WBSEDCL
Mr. Jayjit Ganguly, Advocate
Mr. Pradip Sancheti, Advocate
for Freight Carriers
The Court: We have permitted some interested parties, not
formally impleaded, to appear and participate in these proceedings.
The company was wound up by an order of this court on 31st
January 2013. An appeal from that order was dismissed by a division
bench of this court on 2nd May 2013. A special leave petition was
preferred from that division bench order before the Supreme Court
which appears not to have been entertained.
As late as on 4th March 2021 an application for review of the
judgment and order of the division bench dated 2nd May 2013 was filed
on the ground that the special leave petition was not to be taken as an
appeal and dismissal thereof should not be treated as dismissal of an
appeal. The review application was admitted by this court and
directions for filing affidavits were made. The review application is still
pending.
On 21st February 2022 the Official Liquidator published a
notice for sale of the movable assets of the company described in
annexure A to that notice. The sale is stated to be fixed today.
In that perspective, the present application has been taken out
by the applicant in the review application, Kanti Commercial Private
Limited, for an order restraining the Official Liquidator from taking any
step in furtherance of the sale notice.
The winding up order was made almost ten years ago on 31st
January 2013. The substantive challenge to that order before the
division bench of this court failed. The special leave petition before the
Supreme Court against the division bench order has also not found
favour.
Some nine years after the winding up order was made a review
application has been filed in this court, maintaining the technical
ground that although the Supreme Court had dismissed the special
leave petition, it could not be taken as preferment or dismissal of an
appeal. A review of the division bench order would still lie.
Considering the exigencies of the matter, particularly the fact
that the sale is to take place today, we have proposed to examine,
prima facie, the merits of the review application, while considering this
application.
The grounds on which review is sought are summarised in
paragraph 15 of the present application. It is evident from the grounds
that have been made out that the applicant has tried to justify the
transactions of the company, now in liquidation, which have been held
to be fraudulent preference to deny or defeat the claim of the creditors,
as genuine and bona fide transactions. Particular reference may be
made to the transactions concerning Mumbai, Goa, Ambattrur and
Sahaganj properties of the company.
It is quite evident on reading of the said grounds that prima
facie these cannot constitute any grounds under Order XLVII Rule 1 of
the Code of Civil Procedure for review of the said judgment and order of
the division bench dated 2nd May 2013. Prima facie neither is there any
error apparent on the face of the division bench order or of the records,
nor can it be said that the facts which are now disclosed were not in
the knowledge of the applicant or with the use of reasonable diligence
could not have been in their knowledge at the time the division bench
order was made.
Prima facie these are the grounds on which an appeal may
have been founded but, in our opinion, they do not constitute valid
grounds for review.
Considering all these circumstances, we are not at all minded
to entertain this attempt to stop the sale process.
Accordingly this application is dismissed.
All points in the review application are open.
( I. P. MUKERJI, J )
(ANIRUDDHA ROY, J.)
R. Bose
