Jharkhand High Court
Barun Kanti Bose vs The State Of Jharkhand & Others on 1 November, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Civil Writ Jurisdiction)
W.P. (C) No. 4795 of 2012
........
Barun Kanti Bose .... ..... Petitioner
Versus
The State of Jharkhand & Others .... ..... Respondents
CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO
............
For the Petitioner : Mr. Shankar Lal Agarwal, Advocate.
For the Respondent/State : Mr. Shubham Mishra, A.C. to
Mr. Amit Kumar, S.C.(Mines)-II.
For the Respondent No. 2 : Mr. Sanjay Kumar Tiwary, Advocate.
........
09/01.11.2021.
Heard, learned counsel for the petitioner, Mr. Shankar Lal
Agarwal, learned counsel for the respondent/State, Mr. Shubham
Mishra, A.C. to Mr. Amit Kumar, S.C.(Mines)-II and learned counsel
for the respondent no. 2/JUVNL, Mr. Sanjay Kumar Tiwary.
Learned counsel for the petitioner has submitted that writ
petition has been filed for quashing the notice as contained in Letter
No. 267 dated 03.07.2012 passed by the Certificate Officer (ER),
East Singhbhum in Certificate Case No. 01/2003-04, whereby the
Certificate Officer has issued order of attachment of immovable
property in Form No. 8 under Rule 19 of Schedule-II of Jharkhand
and Orissa Public Demand Recovery Act, 1914, directing the
Officer-in-Charge, Sundarnagar Police Station to realize Rs.
22,39,771/- from the petitioner.
Learned counsel for the petitioner has submitted that M/s
Perfect Electric Concern Private Limited is a Company carried out
by the Shareholders having three Directors namely, Sujit Kumar
Basu, Samarendra Bose and Barun Kanti Bose. The capital of the
said Company is Rs. 10,00,000/- dividend into 1000 equity shares of
Rs. 1000/- each. Sujit kumar Basu has 20 shares, Samarendra Bose
has 20 shares and writ petitioner, Barun Kanti Bose has 10 shares,
but no dues can be recovered from the Directors or Shareholders of
the Company in view of the judgment passed by Apex Court in the
case of Salomon Vs. Salomon & Co. Ltd. reported in 1897 AC 22
and in the case of Bejai Singh Dugar Vs. Certificate Officer,
Bhagalpur and others reported in 1965 BLJR 341 and also in view
of the judgment passed by the Division Bench of the Hon'ble High
Court of Judicature at Patna, Ranchi Bench in the case of Smt. Sarla
Devi Agrawala Vs. The State of Bihar and Others reported in 1979
BBCJ 213 and in view of the judgment / order dated 28.03.2012
passed in W.P.(T) No. 103 of 2012 by this Court in the case of Smt.
Anurupa Bose @ Anurupa Basu Vs. State of Jharkhand & Others.
Learned counsel for the petitioner has further submitted that
the Certificate Officer has to proceed in accordance with law and as
such, the impugned order may be set aside, as the same cannot be
recovered from the Shareholders or the Directors of the Company
though that has to be recovered from the assets of the Company.
Learned counsel for the respondent no. 2, Mr. Sanjay Kumar
Tiwary has submitted that he has filed supplementary counter
affidavit on 30.10.2021 stating therein that it is tactics adopted by the
Director,s Shareholders and Company conniving with each other as
to escape from paying the electricity dues, arrears, bills etc.
Learned counsel for the respondent no. 2 has further submitted
that earlier an agreement (Annexure-C to supplementary counter
affidavit) entered between M/s Perfect Electric Concern Pvt. Limited
with the Jharkhand State Electricity Board on 11.12.2000 with regard
to payment of arrears of current electricity bill from November, 2000
to February, 2001, amounting Rs. 1,93,430/-. The said agreement
was executed on behalf of the M/s Perfect Electric Concern Pvt. Ltd.
by the concerned Authorized Person of the Company with the
Jharkhand State Electricity Board, as such, this Court may consider
such view of the matter.
Learned counsel for the respondent no. 2 has further submitted
that he has categorically stated in para-21 of the supplementary
counter affidavit that the vital and crucial issue is of non-realization
of revenue involved in such cases which adversely affects the
financial position of the JUVNL. There are approximately more than
500 revenue related pending cases, which involves near about more
than 1000 crore amount in different Benches of the Hon'ble
High Court, as such, this Court may consider the financial crunch of
the JUVNL and pass appropriate order.
Considering the rival submissions of the parties, this Court
cannot pass an order to recover the same from one of the
Shareholders as because the JUVNL is suffering from financial loss
of more than 1000 crores. From perusal of the agreement brought on
record as Annexure-C to supplementary counter affidavit, it appears
that the concerned Electricity Board has not taken pain while
entering into an agreement with the authorized person of the M/s
Perfect Electric Concern Pvt. Ltd. by recording his name, parentage
and address in capital letter, so that he can be dealt separately. This
shows complete connivance of officers of the Jharkhand State
Electricity Board now JUVNL in causing financial loss to the JSEB
or JUVNL.
Considering the judgments relied by the petitioner passed by
the Apex Court are with regard to Minimum Wages and others, but
the ratio laid down in those cases clearly held that the dues of a
Company cannot be recovered from the Shareholder(s) or Director(s)
of the Company, rather the dues has to be recovered from the assets
of the Company.
Under the aforesaid circumstances and the submission made
by the learned counsel for the parties, this Court is inclined to quash
the notice as contained in Letter No. 267 dated 03.07.2012 passed by
the Certificate Officer (ER), East Singhbhum in Certificate Case No.
01/2003-04, whereby the Certificate Officer has issued attachment of
immovable property in Form No. 8 under Rule 19 of Schedule-II of
Jharkhand and Orissa Public Demand Recovery Act, 1914 directing
the Officer-in-Charge, Sundarnagar Police Station to realize Rs.
22,39,771/- from the petitioner.
Accordingly, writ petition is hereby allowed.
So far the anxiety shown by the Law Officer, JUVNL is
concerned, the Chairman, JUVNL is hereby directed to constitute a
Special Committee to examine that how such agreement has been
entered into between M/s Perfect Electric Concern Pvt. Limited
without disclosing the name, parentage and address of the authorized
person and apart from that, the Chairman, JUVNL is also directed to
constitute a Separate Committee to quantify that how the loss has
been caused to the JUVNL of more than Rs. 1000 crores as stated by
Mr. Arun Kumar Srivastava, Senior Manager (Law), JUVNL and
further it is directed that after the aforesaid assessment within a
period of three months, suitable steps shall be taken to recover the
same from the erring officials within a period of six months and
place the file before the Government of Jharkhand.
Report of Committees must also be filed before this Court.
The Chairman, JUVNL should also consider to initiate a
proceeding under Section 13 (d) of the Prevention of Corruption Act
against the erring officers in accordance with law.
Office is directed to place this file after submission of the
desired report.
(Kailash Prasad Deo, J.)
Sunil/-
