Hukum Chand Shikhar Chand Jain vs Kush Prints P. Ltd.
2010 Latest Caselaw 5089 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+     CO.PET. 55/2006

      HUKUM CHAND SHIKHAR CHAND JAIN                    ..... Petitioner
                       Through     Mr. Rajesh Banati and Mr. Hari
                                   Mohan, Advocates.
                 versus
      KUSH PRINTS P.LTD.             ..... Respondent
                       Through     Mr. J.K. Sharma, Advocate for the
                                   applicant in C.A.Nos.1123/06 &
                                   564/2010.
                                   Mr. Yogesh Pachaun, Advocate for
                                   Central Bank of India.
                                   Mr. Uchit Bhandan, Advocate for
                                   State Bank of Bikaner and Jaipur.
                                   Mr. Som Dutt Kaushik, Adv. for
                                   NSIC.
                                   Mr. Mayank Goel, Adv. for OL.
      CORAM:
      HON'BLE MR. JUSTICE SANJIV KHANNA
                              ORDER

% 09.11.2010 C.A.Nos.770-772/2006, 1123/2006, 1031/2006, 531/2007, 904- 905/2009 and 1695/2009

By order dated 25th April, 2006, the Official Liquidator attached to this Court was appointed as a provisional liquidator in the case of Kush Paints Private Limited with a direction to the Official Liquidator to take into custody the assets and statutory records. The order dated 25th April, 2006 further records that the respondent company had refused to accept the notice sent by registered post and the same was received back with the remark "refused".

2. Thereafter, the respondent company through Mr. Mohinder Khurana filed application C.A.No.770/2006 (wrongly mentioned in some of the orders as C.A.No.771/2006). By this application, the respondent company had prayed for recall/setting aside of the ex-parte order dated 25th April, 2006. By order dated 23rd June, 2006, notice was issued in C.A.No.770/2006 and it was directed that attachment of the bank account No.010 at Central Bank of India, Press Area, New Delhi would be kept in abeyance subject to the respondent ensuring encashment of the cheques submitted to the petitioner towards the debt due. By another order dated 3rd July, 2006 directions were issued to the respondent company to file an affidavit of the Managing Director giving details of the directors, their residential addresses, place whether statutory records and books of account are kept and to file latest audited balance sheet. These directions were reiterated on 3rd August, 2006 as affidavit in terms of the order dated 3rd July, 2006 was not filed. The Official Liquidator was directed to de-seal the three rooms of the premises sealed by him after affidavit in terms of the order dated 3rd July, 2006 reiterated on 3rd August, 2006 was filed. It was stated on behalf of the management that the petitioner could deposit one post dated cheque issued by them every month. The petitioner without prejudice to his rights and contentions was given liberty to deposit one post dated cheque every month.

3. Several cheques given by Mr. Mohinder Khurana to the petitioner have bounced though it is stated that payment of Rs.14,00,000/- has been made to the petitioner leaving a balance of Rs.9,60,000/-. (this figure is disputed by the counsel for the petitioner, who states that payment of Rs. 12,50,000/- has been made).

4. Thereafter, C.A.No.1123/2006 was filed by M/s. Seshasayee Paper and Board Ltd. and M/s. Narsingh Dass & Company Private Ltd. stating that they had made supplies to the respondent company and an amount of Rs.12,54,915/- was due to them. A cheque of Rs.6,54,352/- drawn on Central Bank of India issued by the respondent had bounced.

5. C.A.No.531/2007 has been filed by the State Bank of Bikaner and Jaipur. It is stated that the respondent company owes them Rs.43,45,457/-.

6. C.A. No.904/2009 has been filed by M/s. Verdhman paper Mart seeking leave of the Company Court to execute the decree against the respondent company for Rs.33,87,133/- plus interest. Similarly, C.A.No.905/2009 has been filed by Mr. Kamal Kumar Jain sole proprietor of M/s. Parash Nath Paper Udyog seeking leave of the Company Court to execute the decree of Rs.39,45,541/- along with interest against the respondent company.

7. C.A.No.1695/2009 has been filed by the National Small Industries Corporation Ltd. seeking leave of the Company Court to execute an award against the respondent and for release of payment of Rs.20,78,500/-

8. Mr. Mohinder Khurana has filed reply to the application C.A.No.1123/2006 filed by M/s. Seshasayee Paper and Board Ltd. and M/s. Narsingh Dass & Company Private Ltd., alleging that the material supplied by them was defected and was rejected.

9. Even, if we exclude the claim of M/s. Seshasayee Paper and Board Ltd. and M/s. Narsingh Dass & Company Private Ltd., it is apparent that the respondent company is heavily in debt and there are substantial claims of State Bank of Bikaner and Jaipur, National Small Industries Corporation Ltd., M/s. Verdhman paper Mart and Mr. Kamal Kumar Jain. The last two also have decrees in their favour.

10. In these circumstances, I do not see any reason to recall the order appointing the provisional liquidator. C.A.No. 770/771 of 2006 is accordingly dismissed. C.A.No.1031/2006 is rendered infructous and is accordingly disposed of. C.A.Nos.904 and 905 of 2009 are disposed of with a direction that the said claimants will be entitled to raise their claims before the Official Liquidator in accordance with law. Similarly, C.A.No.531/2007 filed by State Bank of Bikaner and Jaipur is disposed with a direction that they will be entitled to raise their claim before the Official Liquidator in accordance with law.

11. C.A.No.1123/2006 filed by M/s. Seshasayee Paper and Board Ltd. and M/s. Narsingh Dass & Company Private Ltd. is rendered infructous in view of the order passed above. Liberty is granted to the said applicants to file a fresh application in case the petitioner seeks liberty to withdraw the present petition. It is clarified that the Court has not examined the claim of the applicants in C.A.No.1123/2006. It is noted that the case of Mr. Mohinder Khurana is that the papers supplied by the applicants in C.A.No.1123/2006, were defective.

12. C.A.No.1695/2009 filed by the National Small Industries Corporation Ltd. is also disposed of with a direction that the said claimant will be entitled to raise their claim before the Official Liquidator in accordance with law. In case the NSIC Ltd. is a secured creditor, they are required to submit necessary papers and documents in support of the said contention. Mere award or a decree in their favour does not make them a secured creditor.

CO.P.55/2006 & CCP No. 8/2010

Replies/affidavits filed by the Central Bank of India will be removed from the file of the company petition No.55/2006 and will be placed in the file of CCP No.8/2010. On the next date of hearing the Central Bank of India will produce before this Court their original file, pursuant to which they had agreed to execute the tripartite agreement dated 21st September, 2007. The Official Liquidator will make enquiries about the market price of the land in the year 2007 in RIICO Industrial Area, Phase-III, Bhiwadi, District-Alwar, Rajasthan. The tripartite agreement will be placed on record by the Central Bank of India within one week.

Issue notice to Nidhi Cables Private Limited.

As per the statement of affairs filed by Mr. Mohinder Khurana and Mr. K.L. Khurana, the respondent company had substantial plant and machinery having book value of more than Rs.11,27,000/-. On the other hand, learned counsel appearing for the Official Liquidator states that the machinery, which is available at the site, is scrap. The Official Liquidator will examine the records of the company and get hold of the details of the fixed assets. The Official Liquidator will get hold of the latest balance sheet available with the ROC. Central Bank of India and NSIC will give full details of the plant and machinery, which was either hypothecated or financed by them. Official Liquidator shall obtain vouchers/bills for purchase of the machinery. The said details along with copy of the vouchers/bills will be furnished by the Central Bank of India and NSIC to the Official Liquidator within a period of three weeks. In case any machinery has been sold or transferred and is not available at the site, Official Liquidator will get an FIR registered.

Subash Mittal & Associates, Chartered Accountants are appointed to examine and go through the records and books of accounts of the respondent company. They shall start examining the records from the last financial year for which records are available and then proceed backward up to the financial year 2002-2003. They shall be paid Rs.40,000/- in two equal installments. The first installment will be paid within 7 days of their starting the work. The second installment will be paid after they submit their report in respect of at least two years. It is clarified that the fee fixed above is tentative and the final remuneration will be fixed depending upon the quantum of work. Chartered Accountant will examine the audited balance sheets and verify the records expeditiously and submit their first report on or before the next date of hearing.

Relist on 31st January, 2011.

SANJIV KHANNA, J.

NOVEMBER 09, 2010 NA/VKR