M/S. Koshika Telecom Ltd. vs Ms. Shalini Soni
2011 Latest Caselaw 2739 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
%                       CCP 30/2010


+                                Date of Decision: 23rd May, 2011

#     M/S. KOSHIKA TELECOM LTD.                       ...Petitioner
!                                                  Through: None

                              Versus

$     MS. SHALINI SONI                         ....Respondent
                    Through: Mr. Maninder Singh, Sr. Advocate
                             with Mr. P.S. Bindra, Advocate for
                             contemnor.
                             Mr. Rajiv Bahl, Advocate for OL.
                             Mr. R.K. Bansal, Recovery Officer
                             - DRT-1.
                             Ms. Sara Najmi, Manager Law,
                             IFCI.



      CORAM:
*     HON'BLE MR. JUSTICE P.K.BHASIN

1.    Whether Reporters of local papers may be allowed
      to see the judgment?(No)
2.    To be referred to the Reporter or not?(No)
3.    Whether the judgment should be reported in the digest?(No)


                           ORDER

P.K.BHASIN,J The Official Liquidator had filed this contempt petition under

Sections 11 and 12 of the Contempt of Courts Act 1971 read with

Order XXXIX Rule 2A and Section 151 of the Code of Civil

Procedure for holding one Assistant General Manager(Law) of the

Industrial Finance Corporation of India Ltd.(IFCI) guilty of

committing contempt of this Court and punishing her for deliberately

not complying with the order dated 08/10/2009 passed by this Court in

Company Petition No.75/2002.

2. The undisputed facts leading to the initiation of present

contempt proceedings may first all be noticed. Company Petition no.

75/2002 was filed by Lord Krishna Bank for the winding up of one

Company by the name of M/s Koshika Telecom Ltd. and in that

petition this Company was ordered to be wound up vide order dated

02/08/2005 and the Official Liquidator attached to this Court was

asked to take charge of all the assets of the said Company. Thereafter,

in his status report dated 6th October,2009 it was pointed out by the

Official Liquidator that IFCI, a creditor of the Company under

liquidation, had realized some money by sale of some assets of the

Company under liquidation, through the intervention of the Debt

Recovery Tribunal-I, Delhi where recovery proceedings for the

recovery of its dues had been initiated. In that report the Official

Liquidator had sought a direction to the IFCI for depositing the sale

proceeds already realised by it from the sale of assets of the Company

under liquidation with the Official Liquidator. This court vide order

dated 08/10/2009 had allowed that prayer. After the passing of the

order dated 08/10/2009 by this Court, a meeting was held on

26/10/2009 by the Official Liquidator with the respondent-contemnor,

Assistant General Manager(Law) of IFCI and in that meeting the

Official Liquidator apprised her of the said direction dated 08/10/2009

given to IFCI for the deposit of the sale proceeds of the assets of the

Company under liquidation with the Official Liquidator. However, the

IFCI did not honour that direction of this Court and that non-

compliance of the orders of this Court led to the filing of this contempt

petition by the Official Liquidator.

3. However, after the filing of the contempt petition the counsel for

the Official Liquidator had submitted on 08/03/2011 that it had been

decided not to press the contempt petition in view of the decision dated

6th December,2010 of a Division Bench of this Court in W.P.(C) No.

5014/2010 " IFCI VS M/s Koshika Telecom Ltd.". It was submitted

by the counsel for the Official Liquidator on that date of hearing that

the IFCI instead of complying with the direction given to it by this

Court on 08/10/2009 to remit the amount of sale proceeds of the assets

of the Company under liquidation to the Official Liquidator lying with

it approached the Recovery Officer attached to the Debt Recovery

Tribunal-I in December, 2009 with an application seeking permission

to appropriate the money lying with it. The Official Liquidator had

while opposing that application informed the Recovery Officer also

about the order dated 08/10/2009 of this Court. The Recovery Officer

however decided that application vide his order dated 22 nd February,

2010 and a sum of Rs. one crore only, out of the total sale proceeds of

about 12 crores lying with IFCI, was ordered to be remitted to the

Official Liquidator by IFCI and the balance amount was allowed to be

provisionally appropriated by the IFCI. Aggrieved by that order, the

Official Liquidator filed an appeal before the Delhi Rent Tribunal-I

which was disposed of on 11.6.2010 and the Official Liquidator was

held entitled to the amount realized by sale of immovable properties of

the company under liquidation. An appeal, impugning that order of

DRT was filed by IFCI before appellate tribunal but its appeal was

dismissed on 13.7.2010. Against that order IFCI filed a writ petition

which was decided by a Division Bench of this Court vide order dated

06/12/2010 and IFCI was allowed to keep the sale proceeds with it. In

these circumstances, counsel for the official liquidator submitted, it

was decided not to press the contempt petition though it was

maintained that IFCI had initially committed contempt of this Court.

This Court on finding that the Recovery Officer had allowed IFCI to

keep the money with it after the passing of the order dated 08/10/09 by

this Court refused to drop the contempt proceedings and summoned the

records of the Recovery Officer and Recovery Officer was also

summoned.

4. The Recovery Officer Shri R.K. Bansal, who had passed the

order dated 22nd February, 2010, appeared in Court on 6th May, 2011.

The record requisitioned from his office was perused and it showed

that the Official Liquidator had in response to the notice given to him

by the Recovery Officer on the filing of application by IFCI seeking

permission to appropriate the sale proceeds lying with it placed a copy

of the order dated 8th October, 2009 passed by this Court before the

Recovery Officer besides making a reference to that order in its reply.

Copies of the application moved by the IFCI before the Recovery

Officer, Official Liquidator's reply thereto along with its annexures as

also various orders passed by the Recovery Officer after the filing of

the said application of IFCI till 22nd February, 2010 were ordered to be

kept on file of the present proceedings and the Recovery Officer's

records were ordered to be sent back. Mr. R.K. Bansal, though had

not been given any formal notice to show cause as to why he had

passed the order dated 22nd February, 2010 when this Court had

already directed IFCI to remit the sale proceeds of the assets of the

Company under liquidation to the Official Liquidator attached to this

Court but Mr. Bansal voluntarily clarified that the said order of this

Court was not brought to his notice during the course of hearing of

IFCI's application dated 9th December, 2009.

5. During the course of hearing, learned counsel for the Official

Liquidator was also asked as to why IFCI itself was not sought to be

proceeded against for contempt of Court when the direction of this

Court was given to IFCI only to remit the money to the Official

Liquidator but no satisfactory reason was given.

6. As far as the respondent - contemnor Ms. Shalini Soni is

concerned, her senior counsel Shri Maninder Singh had submitted that

no contempt whatsoever had been committed either by Ms. Shalini

Soni or by IFCI since as per the judgment of the Hon'ble Supreme

Court in the case of "Allahabad Bank vs. Canara Bank & Anr.",

(2000) 4 SCC 406 the Recovery Officer was justified in permitting

IFCI provisionally to appropriate the sale proceeds lying with it and the

Official Liquidator, in fact, should not have even sought a direction

from this Court for directing IFCI to remit the money to him(Official

Liquidator). Earlier, in the reply to the show cause notice issued to

Ms. Shalini Soni, she had categorically claimed that appropriate orders

regarding distribution of sale proceeds and working out priorities

between different creditors of the Company under liquidation had to be

done by the Debt Recovery Tribunal only in respect of the properties

sold by it in execution proceedings. Then, there was also a reference

to the proceedings which took place before the Recovery Officer

regarding IFCI's application for permission to appropriate the sale

proceeds lying with it, filing of appeal by the Official Liquidator

against Recovery Officer's order dated 22nd February, 2010 and the

final order passed by the Division Bench of this Court permitting IFCI

to retain the sale proceeds with it.

7. Learned senior counsel Shri Maninder Singh had also submitted

that with the passing of the order dated 6th December, 2010 by the

Division Bench the order passed by this Court on 8th October, 2009

also stood merged with that order and consequently this Court should

not proceed any further with the contempt matter.

8. However, I am of the view that since, prima facie, IFCI had

failed to comply with the direction given to it by this Court on 8 th

October,2009 and the Recovery Officer had passed an order which was

in conflict with the direction of this Court, a show cause notice to the

IFCI through its Managing Director as well as to the Recovery Officer

Shri R.K. Bansal should be given requiring them to show cause as to

why they should also not be proceeded against for having committed

contempt of this Court. As far as the submission made by learned

senior counsel for Ms. Shalini Soni that the direction given by this

Court to IFCI for remitting the sale proceeds of some assets of the

Company under liquidation to the Official Liquidator should not have

been sought by the Official Liquidator in view of the judgment of the

Hon'ble Supreme Court in Allahabad Bank's case(supra) is concerned,

the same shall be duly dealt with at an appropriate stage.

9. Accordingly, show cause notice to IFCI Ltd. through its

Managing Director and to Shri R.K. Bansal, the Recovery Officer

attached to the Debt Recovery Tribunal, New Delhi be issued by the

registry returnable for 6th July, 2011.

P.K. BHASIN,J

May 23, 2011 sh