Deutsche Bank vs Alpine Industries Ltd.
2024 Latest Caselaw 28160 MP

Madhya Pradesh High Court

Deutsche Bank vs Alpine Industries Ltd. on 14 October, 2024

Author: Subodh Abhyankar

Bench: Subodh Abhyankar

                                                                 1            COMP.No.25/1998




                                      IN THE HIGH COURT OF MADHYA PRADESH
                                                        AT INDORE

                                               COMP No. 25 of 1998
                                    (DEUTSCHE BANK Vs ALPINE INDUSTRIES LTD. )



                           DATED:- 14.10.2024
                                Shri Vijayesh Atre, learned counsel along with Shri Aarya
                           Chhangani, learned counsel for the MPSIDC.
                                Shri Vijay Aasudani, learned counsel for the NPA.
                                Ms. Soumya Dharwal, learned counsel for the Ex-
                           Directors.
                                Shri H.Y. Mehta, learned counsel along with Shri Chinmay
                           Mehta, learned counsel for the Official Liquidator.
                           ----------------------------------------------------

Reserved for orders on I.A.No.4066/2017 and on I.A.No. 14530/2017 on : 30.08.2024 Passed on : 14.10.2024

---------------------------------------------------------

1. Heard on I.A.No.4066/2017 which is an application under Section 446 of the Companies Act, 1956 read with Section 279- 280 of the Companies Act, 2013 filed on behalf of the applicant/NPA Infraestate Pvt. Ltd seeking following relief:-

"i) That this Hon'ble Court may kindly be pleased to allow the present application and may grant leave to applicant to file the suit against MPSIDC as well as Alpine Industries Ltd., the company in liquidation.

ii) Allow this application with costs."

2. In brief, the facts of the case giving rise to filing of the aforesaid application are that the instant company petition for winding up of M/s.Alpine Industries Pvt. Ltd., (the company in- Liquidation) was filed in the year 1995, whereas winding up order was also passed way back on 8.9.1998.

3. The case of the applicant is that on 18/7/2013, an advertisement was issued by the MPSIDC for sale of assets and land of M/s Alpine Industries Ltd., under Section 29 of the State Finance Corporation Act 1951 (for short Act of 1951) on as is where is basis, and in response to the same, the applicant also submitted his bid which was accepted by the MPSIDC. Pursuant to which, a tripartite agreement was also executed between the parties viz., MPSIDC, as the party of first part, Alpine Industries company (in Liqn) as party of second part, and the applicant-NPA Infrastructure Pvt. Ltd., as party of third part. The said land was purchased by the applicant company to develop a residential colony, and pursuant to which, the applicant also paid a sum of Rupees Five Crores to the company (in-Liqn) on 16.1.2015 and 19.5.2016, which is also reflected in the ledger account of M/s Alpine Industries Ltd. in the book of the applicant/company.

4. Similarly, a sum of Rs.7.50 Crores was also given by the applicant to MPSIDC on 6/2/2015 which is also not disputed, a copy of this ledger account is also filed on record. In addition to same, the applicant also issued postdated cheques to the tune of Rs.18.72 crores to the MPSIDC. Whereas, a sum of Rs.9.08 Crores was also paid to MPSIDC on various occasions from 2/1/14 to 2.11.16.

5. Pursuant to this agreement dated 15.01.2014, the possession of the land was also given to the applicant, however, the official liquidator took possession of the same from the applicant while

exercising its power under Sec.456 of the Act of 1956.

6. The case of the applicant is that when the aforesaid agreement was executed, the present company petition was already pending before this Court, and both, the MPSIDC as also the Ex-director of the company-in-liquidation, were well aware of this fact, however, they still entered into the aforesaid tripartite agreement which has led the applicant to part ways with huge amount of money running into crores of rupees. The case of the applicant is that had it been informed about the pendency of the present company petition against M/s Alpine Industries Ltd., it should never have entered into the said tripartite agreement, whereas the Directors of the company (in-liqn) had also obtained the amount from the applicant to pay their statutory dues including the dues of MPSIDC, but neither the dues of the company-in-liquidation have been cleared by the Ex-Directors of M/s.Alpine, nor the sale deed has been executed by the MPSIDC, and the amount has also not been returned to the applicant by both the parties. Thus, the applicant being aggrieved by the actions of the MPSIDC as also the ex-directors of the company (in-liqn.), has filed the present application seeking leave of this Court to file a suit against the MPSIDC and M/S Alpine Industries Ltd.(company-in-liqn).

7. Prayer is vehemently opposed by Shri Vijayesh Atre, learned counsel for the MPSIDC, and also by Ms. Soumya Dharwal learned counsel for the Ex-Directors.

8. Shri Atre, learned counsel for the MPSIDC has drawn the attention of this Court to the fact that the postdated cheques which were issued by the applicant to the MPSIDC have already been dishonoured, and thus the applicant has not complied with its part of the agreement. It is also submitted that the MPSIDC is immune to such proceedings as it had acted under section 29 of the Act of 1951 and thus, permission cannot be granted to sue the MPSIDC.

9. Counsel for the MPSIDC has also submitted that the Directors of the company (in-Liqn) as also of the applicant company have played a fraud with MPSIDC and an FIR at Crime No.339/2017 has already been lodged, and the criminal case is pending against them as well as the directors of the applicant company. In such circumstances, it is submitted that the applicant cannot be allowed to file a suit against the MPSIDC. It is also submitted by Shri Atre, learned counsel for MPSIDC that after taking possession of the premises the Company (in-liqn.), the applicant company has misappropriated the assets of the company (in-liqn.) by removing the plant and machinery worth crores, from the premises of the company (in-liqn.). Thus, it is submitted that the application deserves to be dismissed.

10. Ms.Soumya Dharwal, learned counsel appearing for the Ex- Directors of the Company (in-liqn.), on the other hand, has also opposed the prayer, and has submitted that the Ex-Directors have not committed any fraud as they have given due intimation of

account numbers of the company (in-Liqn.) to the Official Liquidator hence, no case for interference is made out.

11. Heard learned counsel for the parties and perused the record.

12. From the record it is found that admittedly a tripartite agreement was entered into between the parties on 15.01.2024, between the applicant NPA, MPSIDC and the Ex-Directors of the Company (in Liqn) in the name of the company, and admittedly, the applicant has also parted with a huge amount to the tune of more than Rs.15.00 crores, and now all the parties are in a fix as to how to wriggle out of the situation, in which, the possession of the properties, which were the subject matter of the agreement, has already been taken over by the Official liquidator in this company petition.

13. Apparently, the applicant wants to get out of the situation by claiming its amount back, which has been opposed by the respondents MPSIDC as also the Ex-Directors of the Company (in-Liqn), however, this court is of the considered opinion that since various disputed questions of facts and law have been raised by the counsel for the rival parties which can only be decided after the evidence is led by the parties in the civil court.

14. A reply to the aforesaid I.A.No.4066/2017 has also been filed by the Official Liquidator seeking various other reliefs although not specifying whether the Official Liquidator is opposing the application or supporting the same, but has only

added some more confusion to the complications which have arisen in the matter.

15. So far as the contentions of Shri Atre, learned counsel for the MPSIDC that the sale was conducted under the provisions of Section 29 of the Act of 1951, and MPSIDC is immune to litigation, is concerned, various decisions have also been cited by the counsel for the parties regarding applicability and non- applicability of the same, but fact is that this lis between the parties is required to be taken to some logical ends, hence, in the considered opinion of this court, the only way out is a civil suit. Reference in this regard may also be had to s.29(5) of the Act of 1951, which reads as under:-

"S.29(5).- Where the Financial Corporation has taken any action against an industrial concern under the provisions of sub-section (1), the Financial Corporation shall be deemed to be the owner of such concern, for the purposes of suits by or against the concern, and shall sue and be sued in the name of the concern."

16. In such circumstances, this Court is of the considered opinion that the only remedy left to the applicant Company is by the civil suit in which all the disputed questions of facts and law can be determined.

17. So far as the reliefs sought in the reply filed by the Official Liquidator is concerned, he is at liberty to file a separate OLR seeking reliefs which shall be decided on its own merits.

18. Resultantly, the application I.A.No.4066/2017 stands allowed and closed. The applicant is permitted to file a civil suit, as prayed for.

19. Let the civil suit be filed for within a period of 2 months from the date of receipt of certified copy of this order, which shall be decided by the civil court expeditiously.

20. The civil judge, before whom the suit will be filed, is also directed to remit the judgment and decree as well as the record of the case to this Court for further orders, after the same is decided finally.

21. Accordingly, I.A.No.4066/2017 stand allowed.

22. Also heard on I.A.No.14530/2017 which is an application under Rule 9 for directions to the official liquidator as well as reply to OLR 59 of 2017.

23. In view of the order passed on I.A.No.4066/2017, no further order is required to be passed.

24. Accordingly, I.A.No.14530/2017 stands disposed of.

(SUBODH ABHYANKAR) JUDGE das