Gujarat High Court

Textile Labour Association vs Official Liquidator Of ... on 26 October, 2021

Bench: Bhargav D. Karia

    C/COMA/348/2016                                ORDER DATED: 26/10/2021




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/COMPANY APPLICATION NO. 348 of 2016

                 In R/COMPANY PETITION NO. 221 of 2001

                                With
             R/OFFICIAL LIQUIDATOR REPORT NO. 7 of 2019
                                With
                R/COMPANY APPLICATION NO. 18 of 2019
==========================================================
                 TEXTILE LABOUR ASSOCIATION
                            Versus
   OFFICIAL LIQUIDATOR OF MAHESHWARI MILLS LTD. & 7 other(s)
==========================================================
Appearance:
MR DS VASAVADA(973) for the Applicant(s) No. 1
GOVERNMENT PLEADER(1) for the Respondent(s) No. 7
MS PJ DAVAWALA(240) for the Respondent(s) No. 1
NOTICE SERVED THRU CONCERNED POLICE STN for the Respondent(s)
No. 6
NOTICE SERVED(4) for the Respondent(s) No. 2,4,5
NOTICE UNSERVED(8) for the Respondent(s) No. 3
OFFICIAL LIQUIDATOR(16) for the Respondent(s) No. 1
==========================================================

 CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                             Date : 26/10/2021

                              ORAL ORDER

1.Heard learned advocate Mr. D.S. Vasavda for the applicant, learned advocate Ms. P.J. Davawala for the Official Liquidator and learned advocate Mr.Bhavik Samani for respondent no.6.

R/Company Application No. 348 of 2016 :

2.By this application the applicant-Textile Labour Association has prayed for the

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following reliefs :

"(A) Be pleased to direct the Official Liquidator to take the possession of the land occupied by respondent No.6 in view of the order dated 12.7.2011 passed by this Hon'ble Court in First Appeal No. 63 of 1990 and confirmed by the Hon'ble Supreme Court in Special Leave to Appeal (C) No. 35611- 35612 of 2011 dated 2.9.2013;

(B) Be pleased to direct the Official Liquidator to take into custody and take into possession the other areas of land which were owned by Maheshwari Mills (In Liquidation);

(c) Any other and further relief/s as may be deemed fit and proper may please be granted."

3.Facts of the case as per the applicant is that Official Liquidator after passing order by this Court dated 12th September, 2003 in Company Petition No.221/2001 for winding up of Maheshwari Mills Ltd (here-in-after referred to as "the company in liquidation") took possession of all the assets of company in liquidation and same are sold except some parcels of land.

4.It is the case of the applicant that workers of the company in liquidation were paid approximately 67% of the sale realisation and secured creditors have been paid remaining 33%.

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5.It is submitted by learned advocate Mr. Vasavada appearing for the applicant that legal heirs of respondent no.6 - late Natha Bijal Vaghari are in possession of some parcels of land illegally.

6.It was pointed out that there was litigation between the legal heirs of respondent no.6 and one Shankarbhai Nathabhai Datania in the City Civil Court with regard to the possession of the parcel of land situated at Survey No.306 admeasuring 2 Acres and 14 Gunthas and two Civil Suits being Civil Suit No.3094/1981 and Civil Suit No.1827/1983 were filed before the City Civil Judge, Court No.12, Ahmedabad which were rejected. Against the said order, First Appeal No.62/1990 and First Appeal No.63/1990 were preferred before this Court. This Court (Coram : Hon'ble Mr. Justice K.S. Jhaveri, As His Lordship was then) vide judgment and order dated 12th July, 2011 dismissed both the appeals.

7.It was submitted by learned advocate Mr. Vasavada that Official Liquidator was not served during the pendency of the appeals, however, when the matter was before the Supreme Court as the legal heirs of respondent no.6 filed Special Leave to Appeal (Civil) No. 35611-35612/2011, at that point of time, the Official Liquidator was issued

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notice by the Supreme Court and was represented by the advocate. The Supreme Court dismissed the Special Leave to Appeals by order dated 2nd September, 2013. It was submitted that since then the Official Liquidator has not taken any action to take the possession of the said land and as the possession is not taken, this application is filed so as to direct the Official Liquidator to take the possession of the land in question.

8.This Court (Coram : Hon'ble Ms. Justice Sonia Gokani) passed the following order on 5th July, 2019 :

"This is an application preferred by the Textile Labour Association with the following prayers:

"(A) Be pleased to direct the Official Liquidator to take the possession of the land occupied by respondent no.6 in view of the order dated 12.07.2011 passed by this Hon'ble Court in First Appeal No. 63 of 1990 and confirmed by the Hon'ble Supreme Court in Special Leave to appeal (C) No. 35611-35612 of 2011 dated 02.09.2013;

(B) Be pleased to direct the Official Liquidator to take into custody and take into possession the other areas of

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land which were owned by Maheshwari Mills (In Liquidation);

(C) Any other and further relief/s as may be deemed fit and proper may please be granted."

This Court notices that the Official Liquidator has submitted its report on dated 07.02.2019 giving therein the details of the First Appeal which had traveled to the Apex Court. The request was made to join Shri Shankarbhai N. Dantaniya as a party respondent, who had been joined as a party respondent and later he had passed away. Though, served, his heirs have chosen not to appear. It appears that the Court also finds the Map prepared by the District Inspector of Land Records (DILR) produced at Annexure-RR-1. The physical location of parcel of land of Survey No. 306 since is the issue, learned Assistant Government Pleader has ensured that task shall be completed by the DILR in presence of the authorized officer of the Official Liquidator and authorized representative of Textile Labour Association (TLA).

2.1. Let the same be undertaken by the DILR and reports be furnished before this Court, independently, both by the Official Liquidator and by the learned Assistant Government Pleader. Let the said task be completed within a period of three weeks. The office of the DILR shall intimate both the Official Liquidator as well as official representative of the Textile Labour

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Association (TLA) the date and time for the purpose of inspection and earmarking and panchnama (if needed) of the immovable property of Survey No. 306, the possession of which is already with the Official Liquidator. The details of the e- mail ID of Official Liquidator as well as contact number of official representative of the Textile Labour Association (TLA) are as under:

(I) E-mail ID of Official Liquidator-

[email protected] (II) Chandubhai Kanjibhai Thakor (authorized representative of Textile Labour Association) - mobile no. 9825647448

Learned advocate Ms. Davawala shall produce the first report of the Official Liquidator which may have been furnished to this Court earlier at the time when the Official Liquidator was directed to take over the possession of the assets of the property, etc. of the company (in liquidation), to enable the Court to compare those details with the status / details as shall come on record.

                       Let the             matter       appear         on       29th
                   July, 2019."

9.Pursuant to the aforesaid order, the District Inspector of Land Records (DILR) has also submitted the report which is recorded in the order dated 1st August, 2019. As the notice issued upon the legal heirs of respondent no.6 was not served, this Court passed the

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following order on 27th February, 2020 :

"An affidavit dated 12.2.2020 has been filed on behalf of the applicant stating therein that as per oral order dated 29.1.2020, when the applicant tried to affix the notice issued by this Court at the latest address of the respondent No.6, the respondent along with others attempted to assault the applicant. Hence, the notice could not be affixed. Hence, following order is passed :-

Issue fresh notice to respondent No.6 making it returnable on 31.3.2020. It would be open for the applicant to serve the respondent No.6 by affixing the notice at the latest address. The Police Inspector, Shahibaug Police Station, Ahmedabad is hereby directed to provide police protection to the applicant so that the order passed by this Court today can be affixed at the latest address of the respondent No.6. Direct service is permitted."

10. Pursuant to the order dated 6th October, 2021, learned advocate Mr. Vasavada has filed further affidavit wherein it is averred that the applicant has made all endeavour to find out the correct address and location of respondent no.6. Respondent no.6 was also served by direct service in presence of the police inspector. Copy of affidavit of direct service dated 18th March, 2020 is also placed on record at page-87 of the petition along with further affidavit. Thus respondent no.6 is served but has chosen not to appear before this Court.

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11. Further affidavit filed by one Chandubhai Thakor on behalf of the applicant states as under :

"(2) I Say and submit that the respondent no. 6 has illegally come into possession of the land admeasuring about 1000 sq.mtrs, this premises is located in Tavdipura Area. I say and submit that the respondent was served on 14-3-2020 but because immediately thereafter lock-down was declared by the government. Now Affidavit of Service has been filed about 10 days back.

3. I further state that I have taken' the photographs of the exact location where respondent no .6 is residing. This area is known as Tavdipura. Hereto annexed collectively and marked Annexure'AA-1' are the copies of the photographs. The description of the photographs is mentioned hereunder;

(a) In the first photograph, the closed gate is seen and there appears to be the scooter and other articles and it is also mentioned in writing that nobody shall enter the gate;

(b) In the second photograph, the open compound is also seen and the debris and iron sheets are put up but in fact this land also belongs to the mills company (in Liquidation):

(c) The photograph-3 also shows the open premises and iron sheets are put up but this also, belongs to the mills company (an Liquidation):

4. I further state that the ANN.B is the copy of the order passed by the Hon'ble

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Supreme Court on 2-9-2013 which is annexed at page. 17 of the Company Application. However, this order does not indicate the correct address. I further state that when any litigant or his legal heir approaches the Hon'ble Supreme Court then the correct address and location is required to be indicated in the cause title.It is pertinent to note that the applicant was not a party before the Civil Suit or the First Appeal or before the Hon'ble Supreme Court. The respondent no.1, the learned Liquidator was issued a notice and he is in possession of the paper book. We have requested the learned Liquidator to supply copy of the Paper Book or the first page of SLP so that we can find out correct address. However, because of mischief on the part of the respondent no. 6, learned Liquidator is unable to secure the compliance of the order passed by the Civil Court, High Court and Hon'ble Supreme Court.

5. I further state that we have also procured the copy of map indicating Survey Nos. I say and submit that Survey No.306, does not include Maheshwari Estate. However, DLIR has included the Maheshwari Estate in Survey No.306 which is patently incorrect. Hereto annexed and marked Annexure'AA-2' is the copy of the latest map procured by me, which does not show Maheshwari Estate in Survey No.306. I also state that Shashtri Laghu Udhyog No.2 also Operates in the premises which belongs to the mills company (in liquidation). I also state that this premises is situated outside the gate of the mills company (in liquidation), but as a matter of fact this land also belongs to the mills company (in liquidation) .Hereto annexed marked Annexure'AA-2(a)' is the copy of the photograph of Shashtri Laghu Udhyog No.2.

6. I further state that the affidavit of service is already filed. The respondent

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no.6 was served through the P.I. of Madhupura Police Station. Hereto annexed end marked Annexure" AA-3° is the copy of the affidavit of service which has been filed in the registry.

7. I further state that in Tavdipura area, there is an industrial estate called Shashtri Laghu Udhyog No.2, however, when we approached this area,they removed the board put up by them which indicates Shashtri Laghu Udhyog No.2. Now we have taken the latest photograph which also reveals the Shashtri Laghu Udhyog No.2. Hereto annexed and marked Annexure'AA-4' is the copy of the photograph which also indicate Shashtri Laghu Udhyog No.2. Even in the map which is annexed earlier, Shashtri Laghu Udyog has been mentioned. I therefore, state that there is serious mischief played by the respondent no:6 and others to evade the compliance of the order passed by the competent courts including Hon'ble Supreme Court. I therefore, state that the appropriate direction should be issued to the Liquidator to trace the exact location and evict the respondent no.6,

8. In view of this appropriate direction should be issued to official liquidator to locate the respondent no.6 and evict him.

9. I also estate that I know every nook and corner of the mills company {in liquidation). When the representative of the O.L. and the representation of the office of DILR visited the premises for inspection, myself and my colleages were completely ignored and they did not make any note of our suggestion and showing the premises. I therefore, state that if the fresh visit is ordered by the Hon'ble court then in that case direction may be issued to make note of our suggestion and indication."

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12. In view of above facts which are not controverted either by the Official Liquidator or any other person, it would be in the interest of justice to direct the Official Liquidator to take possession of the land which is occupied by the legal heirs of late Natha Bijal Vaghari, located in Tavdipura area being part and parcel of the land of the company in liquidation.

13. The Official Liquidator is also authorised to take help of the police to get the land in question vacated so as to maintain law and order situation.

14. R/Company Application No.348 of 2016 is accordingly disposed of.

R/Company Application No. 18 of 2019 :

15. By this application, the applicant has prayed for the following reliefs :

"(A) The respondent no.1 may be directed to evict respondent no.6 with the aid and assistance of Police and respondent no.5 and further be directed to demolish the construction put up by the respondent no.6 in the land situated at Plot No.A, situated on Survey No.324/A paiki TPSNo.14, Final Plot No.110 paiki Maheshwari Mill Compound, Tavdipura, Shahibaug, Ahmedabad;

(B) The respondent no.1 may be directed

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to evict respondent no.6 with the aid and assistance of Police and respondent no.5 and further be directed to demolish the construction put up by the respondent no.6 in the land situated at Plot No.B, situated on Survey No.324/A paiki TPSNo.14, Final Plot No.110 paiki Maheshwari Mill Compound, Tavdipura, Shahibaug, Ahmedabad;

(C) The respondent no.1 may be directed to evict respondent no.6 with the aid and assistance of Police and respondent no.5 and further be directed to demolish the construction put up by the respondent no.6 in the land situated at Plot No.C, situated on Survey No.324/A paiki TPSNo.14, Final Plot No.110 paiki Maheshwari Mill Compound, Tavdipura, Shahibaug, Ahmedabad;

(D) The respondent no.1 may be directed to dispense and terminate security persons of security agency and to take appropriate action and to file the suit for damages against the Security Agency for not protecting the property of the mills (in liquidation);

(E) Pending hearing and final disposal of the present Company Application, the Respondent no.6, their representatives, their servants and agents may be restrained in carrying out to put up further construction and further be pleased to direct them to maintain status quo as on today;

(F) Any other and such further relief as the Hon'ble Court deems fit and proper in the interest of justice;"

16. Respondent no.6 in the application is

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Maheshwari Estate which has occupied the land of the company in liquidation.

17. Facts of the case are that after passing order dated 12th September, 2003 in Company Petition No.221/2001 for winding up of Maheshwari Mills Ltd (here-in-after referred to as "the company in liquidation") almost all assets excluding assets comprising of land whose description has been given in prayer clause above, are yet to be sold though attempts were made by Official Liquidator also by issuing advertisement. This Court vide order dated 18th June, 2018 in Company Application No. 103/2017 directed the Official Liquidator to convene the Sale Committee meeting to explore the possibility of sale of the said land. However, the applicant upon spot survey noticed unauthorised construction on the land of the company in liquidation and therefore, issued notice dated 11th February, 2019 to the Official Liquidator. Being aggrieved by the inaction on part of the Official Liquidation, the applicant has preferred present Company Application.

18. This Court (Coram : Hon'ble Ms. Justice Sonia Gokani) passed the following order on 18th July, 2019 :

"1. With the following judge's summons

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this application has been preferred by the Textile Labour Association:-

"(A) The respondent no.1 may be directed to evict respondent no.6 with the aid and assistance of Police and respondent no.5 and further be directed to demolish the construction put up by the respondent no.6 in the land situated at Plot No.A, situated on Survey No.324/A paiki TPSNo.14, Final Plot No.110 paiki Maheshwari Mill Compound, Tavdipura, Shahibaug, Ahmedabad;

(B) The respondent no.1 may be directed to evict respondent no.6 with the aid and assistance of Police and respondent no.5 and further be directed to demolish the construction put up by the respondent no.6 in the land situated at Plot No.B, situated on Survey No.324/A paiki TPSNo.14, Final Plot No.110 paiki Maheshwari Mill Compound, Tavdipura, Shahibaug, Ahmedabad;

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(F) Any other and such further relief as the Hon'ble Court deems fit and proper in the interest of justice;"

2. This Court notices that the litigation in relation to the Maheshwari Mills is also coming up for hearing in Company Application No. 348 of 2016 in Company Petition No. 221 of 2001. Let the present matter be tagged along with the Company Application 348 of 2016 in Company Petition No. 221 of 2001.

3. Learned advocate Mr. Bhavik Samani appearing for the respondent no.6 ensures to produce on record the registered sale deeds of those shades of ownership of which he is claiming. He shall also produce the registered sale deeds of the erstwhile original owners along with registered deeds of the claimants before this Court.

4. Matter to appear on 29.07.2019"

19. Learned advocate Mr. Bhavik R. Samani appearing for respondent no.6 states that the compliance of the aforesaid order is not made till date.

20. Be that as it may, it is not in dispute

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that the land which is used for Sanitary block belongs to the company in liquidation and therefore, respondent no.6 or any other person cannot have any lien or access to such sanitary block which is part and parcel of the land of company in liquidation. Official Liquidator is therefore, directed to take possession of the sanitary block from respondent no.6.

21. R/Company Application No.18 of 2019 is accordingly disposed of.

R/Official Liquidator Report No.7 of 2019 :

22. This Official Liquidator Report is filed with the following reliefs :

"(A) In view of facts stated in para (08) to (10) of this report, this Hon'ble Court may be pleased to approve the action of the sale committee to fix upset price and EMD for sale of the assets and properties of the company in liquidation or fix any other amount as upset price and EMD which this Hon'ble Court may consider fit and proper for inviting offers for sale of the assets and properties of the above-named company in liquidation. from the prospective bidders.

(B) In view of facts stated in para (11) to (12) in this report. this Hon'ble Court may be pleased to permit the Official Liquidator to publish sale

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proclamation in "Times of India", English Script, in Ahmedabad edition and in "Gujarat Samachar", Gujarati Script. in all Gujarat editions as proposed by the members of the sale committee and also on the website of Ministry of Corporate Affairs as well as High Court of Gujarat or in any such Newspapers as may be directed by this Hon'ble Court.

(C)In view of facts stated in para (13) of this report, this Hon'ble Court may be pleased to approve the proposed sale schedule for sale of the assets of the company in liquidation or may fix up the sale schedule for date of issuance of sale proclamation in Newspaper. date of issuance of tender forms. date of inspection to intending purchasers and date of opening of tender form and inter-se-auction before this Hon'ble Court which this Hon'ble Court may consider fit and proper for inviting offers for sate of the assets and properties of the above-named company in liquidation, from the prospective bidders.

(D) This Hon'ble Court may be pleased to permit the Official Liquidator to incur necessary advertisement expenses and make payment to Advertisement Agency on receipt of the bills from the account of the company in liquidation.

(E) This report is submitted for such other and further orders and directions as may be considered just and appropriate by this Hon'ble Court."

23. However the Valuation Report as well as

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reserve price set-up are pursuant to the Sale Committee meeting held in the year 2019 based on valuation report dated 4th September, 2018.

24. In view of above, Official Liquidator is directed to obtain fresh Valuation Report from the registered valuer for the property which is proposed to be sold. Such exercise shall be completed within four weeks and thereafter fresh Official Liquidator Report be filed with necessary prayers.

25. R/Official Liquidator Report No. 7 of 2019 is accordingly disposed of.

(BHARGAV D. KARIA, J) RAGHUNATH R NAIR