Smt. Rajashree Khedekar vs Official Liquidator Of M/S ...
2022 Latest Caselaw 1632 Kant

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 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

    DATED THIS THE 3RD DAY OF FEBRUARY, 2022

                       BEFORE

  THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV

       COMPANY APPLICATION No.326/2017
                     IN
         COMPANY PETITION No.2/2000

BETWEEN:

SMT. RAJASHREE KHEDEKAR
W/O SHREE YESHWANT KHEDEKAR
AGED ABOUT 44 YEARS
R/O A-2/GF-03, VRINDAVAN GARDENS
VARCONDEM PONDA,
GOA.                                       ... APPLICANT

(BY SRI S. SRIRANGA, SENIOR ADVOCATE FOR
    SRI VIKRAM U.R., ADVOCATE)

AND:

OFFICIAL LIQUIDATOR OF
M/S. KIRLOSKAR INVESTMENTS AND
FINANCE LIMITED
(ATTACHED TO HIGH COURT OF KARNATAKA)
CORPORATE BHAVAN,
NO.26-27, 12TH FLOOR,
RAHEJA TOWERS, M.G. ROAD,
BENGALURU - 560 001.                  ... RESPONDENT

(BY SRI K.S. MAHADEVAN, ADVOCATE)

     THIS COMPANY APPLICATION IS FILED UNDER SECTION
446 OF THE COMPANIES ACT, 1956 R/W RULE 117 OF THE
COMPANY (COURT) RULES, 1959, PRAYING TO GRANT THE
APPLICANT LEAVE TO PROCEED WITH THE REGULAR CIVIL SUIT
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NO.100/2006/A PENDING IN THE FILE OF CIVIL JUDGE, SENIOR
DIVISION, PONDA, GOA, IN THE INTERESTS OF JUSTICE.

     THIS COMPANY APPLICATION COMING ON FOR ORDERS
THIS DAY, THE COURT, MADE THE FOLLOWING:

                            ORDER

The applicant has sought for leave to proceed with the

Regular Civil Suit No.100/2006A pending on the file of the

Civil Judge, Senior Division, Ponda, Goa. The present

application has been filed under Section 446 of the

Companies Act read with Rule 117 of the Company (Court)

Rules, 1959.

2. It is submitted that the company in liquidation

had executed a sale agreement dated 10.01.2003 and

construction agreement on the same date, whereby the

company in liquidation had agreed to sell the shop bearing

No.A-2/GS-10 situated at "Vrindavan Garden", Varcondem,

Ponda, Goa, having the super built-up area of 24 Sq. Mtrs.

It is submitted that in light of the disputes that have arisen

and the rescindment of the agreement, the suit has been

filed seeking for the following reliefs:

"a. For a Decree, Judgment and Order declaring the sale agreement dated 10.01.2003 executed by the plaintiff and the defendants is a subsisting agreement.

b. For a Decree, Judgment and Order directing the defendants to execute a deed of sale conveying the suit flat in the name of the plaintiff.

c. For a permanent injunction restraining defendants, their servants, agents, family members or any other person or persons acting on their behalf from selling, transferring or creating any charge of whatsoever nature in respect of the suit shop.

d. For a temporary injunction restraining defendants, their servants, agents, family members or any other person or persons acting on their behalf from selling, transferring or creating any charge of whatsoever nature in respect of the suit shop.

e. For an ex-parte ad-interim order in the nature of prayer (d).

f. Any other order."

3. The Company in liquidation was ordered to be

wound up as per the order dated 24.12.2010. However, in

light of the suit having been filed earlier, the Company

which is now in liquidation had also filed its written

statement and had raised counter claims before the trial

Court. The reliefs of the counter claim are as follows:

"a. For a decree directing plaintiff to vacate the Suit Shop and hand over the vacant possession thereof to the Defendant No.1.

b. For a decree directing the plaintiff to pay the Defendant No.1 a sum of Rs.1,27,500/- as mesne profits for illegally occupying the suit shop from January, 2003 till March, 2007 and further sum at the rate of Rs.2,500/- per month from April, 2007 till she vacates the suit shop.

     c.    For costs.


     d.    For such other and further reliefs as this

Hon'ble Court may deem just and proper."

4. It is contended by the official liquidator by

placing reliance on the order in C.A.Nos.990 & 991/2000 as

well as the order passed in C.A.No.40/2003 that as a

normal procedure the suit should be transferred to the

company court and submits that the orders relied upon

relate to a similar factual matrix where proceedings were

transferred to this Court. It is also submitted that there

would be substantial expenditure in conducting the litigation

in Goa.

5. On the other hand, learned Senior counsel

appearing for the applicant submits that there is no

universal rule regarding withdrawal and transfer of the

proceedings to the company court. It is further submitted

that proceedings in the trial Court is set out for cross-

examination of the plaintiff. Reliance is also placed on the

judgment of the Apex Court in the case of Central Bank of

India vs. M/s. Elmot Engineering Company and others

- (1994) 4 SCC 159 and it is contended that inconvenience

of the applicant must also be taken note of. It is further

pointed out that power of withdrawal of proceedings before

the Company Court is to be exercised only in case of

wasteful or expensive litigation.

6. Heard both side.

7. Power under Section 446 of the Companies Act

would include power to entertain or dispose off any suit or

proceedings by or against the company where such suit or

proceedings has been initiated before or after the order of

winding up of the company. The primary object of such

provision is to ensure that interests of the company in

liquidation are not sacrificed in any manner.

8. Taking note of the nature of dispute raised by

the Official Liquidator including the counter claim raised, the

litigation obviously is long and protracted. The plea of

inconvenience involved in conducting the litigation at Goa is

a matter that deserves to be accepted looking into the

nature of counter claim. Further, noticing the value of the

property and the consideration in the agreement, it would

be practical to withdraw the proceedings and have the same

adjudicated by the Company Court. It is to be noticed that

the observations made by the Apex Court in the case of

Central Bank of India (supra) is in the peculiar facts of

the case and the observations made at paragraph No.16

reads as hereunder:

"16. Without intending to lay down the law broadly but confining only to the facts of this case, we feel that the order of transfer of the suits to the High Court of Bombay cannot be supported. We are unable to uphold the finding of the High Court when it observed:

"On examination of facts and circumstances of the case, I am of the opinion that defending at a far distance in the Court of Additional Subordinate Judge, Rangareddy District at Saroor Nagar in Andhra Pradesh is going to be more expensive than if the said suits are continued and tried in this Court on the same being transferred to this Court. It is neither convenient nor proper that the Official Liquidator appointed Liquidator of the Respondent I should be asked to defend the said suits in that Court since the wasteful expenditure is to be avoided."

9. Accordingly, taking note of the power under

Section 446 and also the contentions raised by the Official

Liquidator, it is appropriate to have the proceedings

withdrawn to this Court. Accordingly, proceedings in regular

Regular Civil Suit No.100/2006A pending on the file of the

Civil Judge, Senior Division, Ponda, Goa, is withdrawn with

a direction that all records relating to the said proceedings

be transferred forthwith to this Court. Registry to take

appropriate steps to ensure withdrawal of such proceedings.

10. Accordingly, C.A.No.326/2017 is disposed off.

Sd/-

JUDGE

VP