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2008 DIGILAW 1790 (PAT)

Mahendra Prasad v. Shree Vishnu Roller Flour & Oil Mills Pvt. Ltd.

2008-12-19

S.N.HUSSAIN

body2008
JUDGEMENT 1. I.A. No. 4468 of 2004, filed on behalf of Smt. Kanchan Devi wife of Mahendra Prasad, was placed earlier and all the parties concerned were duly heard on the said application and order was reserved. 2. This Company Petition has been filed on 10.12.1998 by six persons, namely, Mahendra Prasad. Smt. Kanchan Devi (wife of Mahendra Prasad), Niraj Kumar, Vivek Kumar, Vikash Kumar (sons of Mahendra Prasad) and Mahendra Prasad & Sons H.U.F. (through its Karta Mahendra Prasad) under the provisions of the Companies Act, 1956 for the following reliefs:- (i) That Shree Vishnu Roller Flour and Oil Mills Private Limited may be wound up by this Honble Court under the provisions of the Companies Act, 1956 . (ii) That such other order as may be made in the premises as shall be just and proper. 3. Thereafter by order dated 5.2.1999 notices were directed to be issued to respondents for appearance and for filing show cause. On 16.4.1999 the Company Petition was admitted for hearing and was directed to be advertised under Rule 99 of the Companies (Court) Rules in English and Hindi daily newspapers. Thereafter on 2.5.2003 the following winding up order was passed by this Court:- "From the facts stated above, it is evident that the subsstratum of the Company has gone and the company is not in a position to carry on the business and in that view of the matter, I am of the opinion that it is just and equitable to wind up the Company. Let the Company be wound up. The Official Liquidator is appointed as the Liquidator of the Company and he shall proceed in the matter further in accordance with law." 4. In spite of the order and the notice of the Official Liquidator the petitioners did not make themselves available for handing over possession of the properties to the Official Liquidator, hence by order dated 11.2.2004 this Court directed the petitioners to file an affidavit explaining the same. In spite of the order and the notice of the Official Liquidator the petitioners did not make themselves available for handing over possession of the properties to the Official Liquidator, hence by order dated 11.2.2004 this Court directed the petitioners to file an affidavit explaining the same. When the case was placed before the then Company Judge on 8.4.2004, the Official Liquidator contended that he was unable to take possession of the property because of non-cooperation of the ex-management and hence the Official Liquidator was directed to break open the lock, put by the ex-management or anybody else, enter into the premises, prepare inventories of the assets, books and records of the company, take possession of the movable and immovable properties and put his lock and for that he may take help/assistance of the local police. Subsequently, by order dated 16.8.2004 this Court held that the Official Liquidator would be entitled to dispossess all the persons who were found in possession of the properties and on production of a copy of the said order to the Superintendent of Police, Gaya, he shall provide guard of 1 plus 10 to the Official Liquidator to avoid any mishap at the time of taking of possession. It transpires that on the basis of the aforesaid orders of this Court the Official Liquidator came in possession of the premises in question and sealed the same by placing his locks thereon. 5. Subsequently on 6.9.2004 Smt. Kanchan Devi, who was herself one of the petitioners in the company petition and was also the wife of petitioner no. 1, Mahendra Prasad, filed LA. No. 4468 of 2004 (Flag-17) claiming that the office premises said to be in 5 K.P. Road, Gaya is no more in existence now and old holding no. 6, new holding no. 7 is not the property of the company in question, although it might be having its head office at 5 K.P. Road much earlier before the purchase by the petitioner, Kanchan Devi who had received its vacant possession from her vendor. It was contended that the said holding contains two shop rooms which had been sealed by the Official Liquidator. 7 is not the property of the company in question, although it might be having its head office at 5 K.P. Road much earlier before the purchase by the petitioner, Kanchan Devi who had received its vacant possession from her vendor. It was contended that the said holding contains two shop rooms which had been sealed by the Official Liquidator. In the said circumstances the following prayer was made in the said interlocutory application:- "It is, therefore, prayed that your lordships may graciously be pleased to direct Official Liquidator to unseal the aforesaid premises and restore possession to petitioner, Kanchan Devi at the earliest and be further pleased to modify the order dated 16.8.2004 as prayed above and pending hearing the shops may be allowed to be opened on the terms and conditions which may be imposed by this Honble Court. And/or Such other order(s) as your Lordships may deem fit and proper be passed." 6. The said interlocutory application was rejected by the then Company Judge vide order dated 13.5.2005 with the following observations:- "Smt. Kanchan Devi, defendant no. 2, who had filed petition at flag "17" for release of the property had initially filed the winding up petition and had also signed the same and now she is praying to release the property purchased on 8.6.2001 and 4.3.2003 after filing of the winding up petition on 10.12.1998. The property in question has been purchased much after the winding up petition was filed without obtaining permission from this Court as such this Court does not feel confident to release the property at the request of Defendant No. 2, which is rejected." 7. It transpires that the order of Company Judge dated 13.5.2005 was challenged by the said Smt. Kanchan Devi in Company Appeal No. 5 of 2005 which was also rejected by a Division Bench of this Court vide order dated 22.11.2005 after considering the entire matter in detail. It transpires that the order of Company Judge dated 13.5.2005 was challenged by the said Smt. Kanchan Devi in Company Appeal No. 5 of 2005 which was also rejected by a Division Bench of this Court vide order dated 22.11.2005 after considering the entire matter in detail. Against the aforesaid order of the Division Bench of this Court the said Smt. Kanchan Devi filed Civil Appeal No. 5043 of 2008 [arising out of SLP (C) No. 2909 of 2006] before the Honble Apex Court which was allowed vide order dated 13.8.2008 with the following directions:- "Accordingly we allow the appeal and direct that necessary directions be given by the learned Company Judge to the Official Liquidator to allow the appellant to use the two shop rooms till a final decision is arrived at in the application filed by the appellant before the learned Company Judge regarding the ownership of the shops in question. Such directions must be given within a month from the date of communication of this order subject to the appellant filing an undertaking that she will not transfer or encumber the said shop-rooms during the pendency of Company Appeal No. 5 of 2005." 8. The said order of the Honble Apex Court was sent by D.O. No. 515/2006/Sec XVI dated 5.9.2008 which was subsequently received in the office of this Court on 17.9.2008. In the meantime, a supplementary affidavit was filed on behalf of Smt. Kanchan Devi on 4.9.2008 stating that "she undertakes that she will not transfer or encumber the said shop-room during the pendency of the application filed by the appellant before the Honble Company Judge regarding the ownership of the shop in question". 9. In the said circumstances and in compliance of the aforesaid order of the Honble Apex Court dated 13.8.2008, this Court vide its order dated 25.9.2008 directed the Official Liquidator to allow the applicant to use the two shop premises in question till the final decision is arrived at on the application filed by her before the Company Judge regarding ownership of the shop in question as Smt. Kanchan Devi has undertaken that she will not transfer or encumber the said shop rooms during the pendency of the Company Petition, as Company Appeal No. 5 of 2005, having already been dismissed on 22.11.2005, was not pending. 10. 10. In the said order dated 25.9.2008 it had also been specifically found as follows: "(i) Now in further compliance of the aforesaid order of the Honble Apex Court a final decision has to be taken by this Court on the application filed by the appellant before this Court regarding the ownership of the shops in question. In the said circumstances this Court tried to find out any such application filed by Smt. Kanchan Devi for deciding the question of ownership of the shops in question but no such application has ever been filed by the said Kanchan Devi in the instant company petition. Even learned counsel for the said applicant is unable to indicate any such application in which the aforesaid prayer has been made by the applicant. (ii) However, in I.A. No. 4468 of 2008 a statement has been made with regard to old holding no. 6, new holding no. 7 (containing shop-rooms) that it is not the property of the company in question rather it was the purchased property of the applicant vide registered sale deeds dated 8.6.2001 and 4.3.2003, but in the prayer portion of the said interlocutory application no relief was sought with regard to any decision regarding the ownership of the said shops rather a mere direction was sought asking the Official Liquidator to unseal the said premises and restore the possession thereof to the applicant so that she may be allowed to reopen the shops on such terms and conditions as imposed by this Court. However, the said interlocutory application has already been rejected by this Court on 13.5.2005. In the said circumstances the applicant Smt. Kanchan Devi having not filed any application for relief regarding declaration of ownership, this Court has no option but to consider the said I.A. No. 4468 of 2004 again with regard to the said aspect in compliance of the order of Honble Apex Court. (iii) However, learned counsel for the applicant Smt. Kanchan Devi is not ready to argue on the said interlocutory application today and seeks an adjournment for being heard after Puja vacation. In the said circumstances put up this case on 16th of October, 2008 for hearing I.A. No. 4468 of 2008." 11. (iii) However, learned counsel for the applicant Smt. Kanchan Devi is not ready to argue on the said interlocutory application today and seeks an adjournment for being heard after Puja vacation. In the said circumstances put up this case on 16th of October, 2008 for hearing I.A. No. 4468 of 2008." 11. When the case was again listed on 16.10.2008 before this Court, the learned counsel appearing for applicant, Smt. Kanchan Devi wife of Mahendra Prasad, submitted that in spite of the order of this Court dated 25.9.2008 the Official Liquidator has not handed over possession of the two shop rooms to the applicant till date and hence he may be directed to first comply the said order. In reply to the said submission the Official Liquidator specifically stated that the property in question is situated at Gaya and the Official Liquidator, who is staying at Patna, will have to go to Gaya to handover possession of the said shop rooms to the said applicant in compliance of the order of this Court, but the said applicant never contacted him nor even informed him that on any given date she would be present at the said place in Gaya for compliance of the said order and hence due to laches on the part of the applicant herself the said order could not be complied. 12. However, this Court specifically found that as per the direction of the Honble Apex Court vide order dated 13.8.2008 passed in S.L.P.(C) No. 2909 of 2006, a final decision regarding the ownership of the shop in question has to be arrived at. Hence, this Court heard learned counsel for the applicant, Smt. Kanchan Devi wife of Mahendra Prasad as well as learned Official Liquidator on the question of ownership/title in detail. 13. It may be very important to mention here that no application nor any affidavit has even been filed by the applicant Smt. Kanchan Devi in the instant case for deciding the question of ownership or title of the shops in question and even learned counsel for the applicant was unable to indicate any such application or affidavit in which the aforesaid prayer was made. So far the I.A. No. 4468 of 2004 is concerned, the relief sought in the prayer portion was merely with regard to seeking a direction asking the Official Liquidator to unseal the said premises and restore the possession thereof to the applicant so that she may be allowed to reopen the shops of suit premises on conditions as imposed by the Court. However, the said interlocutory application had already been rejected by the then Honble Company Judge vide order dated 13.5.2005, which was affirmed by order dated 22.11.2005 passed by a Division Bench of this Court in Company Appeal No. 5 of 2005 which was filed by the said Smt. Kanchan Devi. The said appellate order was challenged by Smt. Kanchan Devi before the Honble Apex Court in Civil Appeal No. 5043 of 2008 [S.L.P. (C) No. 2909 of 2006] but the Honble Supreme Court did not set aside the appellate order of the Division Bench of the High Court and allowed the Civil Appeal on 13.8.2008 merely directing this Court that necessary directions be given to the Official Liquidator to allow the appellant to use the shop-rooms till the final decision is arrived at on the application filed by the appellant before the learned Company Judge regarding the ownership of the shop in question. 14. After receiving the said order of the Honble Supreme Court this Court after due deliberation has found that the said Smt. Kanchan Devi wife of Mahendra Prasad has not filed any application for any relief regarding declaration of her title or ownership and even the learned counsel for the said applicant could not indicate any such application or affidavit in which such prayer was ever made, hence this Court has no option but to consider the said I.A. No. 4468 of 2004 again which regard to the said aspect in compliance of the above- mentioned order of the Honble Apex Court for deciding the ownership of the two shops in question. 15. Learned counsel for the applicant Smt. Kanchan Devi wife of Mahendra Prasad, argued that from the order of the Honble Supreme Court dated 13.8.2008 it is quite apparent that the said Honble Court had treated I.A. No. 4468 of 2004 as an application for exclusion of the property in question from the properties in liquidation considering the said interlocutory application as an application for deciding the ownership. Hence, according to him this Court also has to consider the said I.A. No. 4468 of 2004 in the same light. He further averred that now the question of title and ownership has to be decided by this Court as per the provision of Order XXI Rule 58 of the Code of Civil Procedure after framing the issues as is done in civil suits regarding the declaration of title. It is further stated that the matter of ownership/title of the shops in question has to be considered and decided on the basis of averments of the applicant made in I.A. No. 4468 of 2004 (Flag-17) and her supplementary affidavit dated 15.10.2008 (Flag-33) and the materials attached thereto. 16. The claim of the applicant is that the office of the Company is no more in existence at 5 K.P. Road, Gaya, bearing holding no. 6 (now holding no. 7) of Ward No. 4 of Gaya Municipal Corporation, appertaining to plot no. 647 (old plot No. 11912), which is not the property of the Company and the same has been purchased by the applicant and had received vacant possession thereof from her vendor, who was the original owner. It is further claimed that may be earlier the company had its office at the said premises but the original owner of the said property was one Shri Brindaban Prasad whose heirs partitioned the said property vide memorandum of partition dated 27.10.1994 out of whom Lalan Kumar Sinha and Rakesh Kumar Sinha got portions of the property in question alongwith other properties in their share and thereafter by registered deeds dated 8.6.2001 and 4.3.2003 the applicant purchased their respective portions of the property in question from Lalan Kumar Sinha and Rakesh Kumar Sinha by paying valuable consideration of Rs. 2,80,000/- to each of them, whereafter she was put in possession of the said property as its exclusive owner and she has also been mutated. Hence, he claims that company had no title over the shops in question and the Official Liquidator had no right to take possession and seal the property of the applicant due to which she is suffering irreparable loss. 17. Hence, he claims that company had no title over the shops in question and the Official Liquidator had no right to take possession and seal the property of the applicant due to which she is suffering irreparable loss. 17. The applicant in her I.A. No. 4468 of 2004 had annexed as Annexure-1 a photocopy of order of this Court dated 16.8.2004 passed in the instant company petition by which Official Liquidator was directed to take possession of the properties of the head office of the Company including the articles kept therein. Annexures-2 and 2/A of the said interlocutory application are photocopies of assessment register of Gaya Municipal Corporation in the name of Rajeshwar Prasad, whereas Annexure-4 is a copy of unregistered deed of partition dated 27.10.1994. Annexures-3 and 5 are copies of sale deeds dated 8.6.2001 and 4.3.2003 executed by Lalan Kumar Sinha and Rakesh Kumar Sinha in favour of the applicant, Smt. Kanchan Devi, whereas Annexures-6, 6/A and 6/B are photocpies of municipal tax receipts. Furthermore, only one annexure has been attached to the supplementary affidavit dated 15.10.2008 filed by the appellant, Smt. Kanchan Devi, which is a copy of the order of the Honble Supreme Court dated 25.2.2008 passed in S.L.P. (Civil) No. 2909 of 2006 in which it was held as follows:- "Two of the documents, which in our view are necessary for a decision in this matter, are not on record, namely, the winding up petition filed on behalf of the petitioner and the application made by her before the learned Company Judge for exclusion of the property in question from the properties which are said to have been vested in the Official Liquidator as being property belonging to the Company-in-liquidation." 18. On the other hand the learned Official Liquidator has stated that in the records of Registrar of Companies the registered office of the Company-in-liquidation is shown in the premises now in dispute, namely, 5 K.P. Road, Gaya in accordance with Section 146 of the Companies Act, 1956. On the other hand the learned Official Liquidator has stated that in the records of Registrar of Companies the registered office of the Company-in-liquidation is shown in the premises now in dispute, namely, 5 K.P. Road, Gaya in accordance with Section 146 of the Companies Act, 1956. He further submits that the applicant, Smt. Kanchan Devi, alongwith her husband Mahendra Prasad and others representing the Ex-management, had filed the Original Company Petition (13 of 1998) for winding up of the Company but none of them took any step for informing the change of address, although the law specifically provides that any change in the address of the registered office of the Company has to be informed to the Registrar of Companies and hence, the Official Liquidator had rightly and legally took possession of the said property in question with the help of the authorities as per specific orders of this Court. Learned Official Liquidator further submits that company was incorporated by Anant Ram and his two sons, namely, Mahendra Prasad and Brijendra Prasad, only out of whom Mahendra Prasad was the husband of the applicant Smt. Kanchan Devi. It is further submitted that subsequently Anant Ram and Brijendra Prasad had died, whereafter Mahendra Prasad, the husband of the applicant Smt. Kanchan Devi also came up with a case that he has already resigned from the Company on 1.6.1993 and hence, he was not liable to file any statement of affairs under Section 454 of the Act. In the said circumstances, Naresh Kumar, the third son of Anant Ram, was inducted due to non-compliance of the said provision of law but he also claimed that his inclusion in the Board of Directors by his father was forged as his father had died much earlier and he had no concern with the Company. He also submits that in the said circumstances this Court on 13.5.2005 was left with no option but to direct the Official Liquidator to proceed with the sale of the properties which were seized in compliance of the order of this Court dated 16.8.2004 as no statement of affairs was filed by any of the persons of the Ex-management although the Company petition was filed for winding up of the company by six members of the Ex-management, including Smt. Kanchan Devi and her husband Mahendra Prasad. 19. 19. It is further claimed by the Official Liquidator that had the Ex-management, who had filed the company petition, filed statement of affairs also giving details of the properties of the company, excluding the premises in question, there would not have been any requirement for all these complications. It is also averred that neither the Ex-management nor the secured creditor could prove any material to show that the premises in question, i.e. 5 K.P. Road Gaya, belonged to the company nor even there is any material on record to show that the said property belonged to the company-in-liquidation and hence in view of the documents of title, partition, sale and mutation produced by the applicant Smt. Kanchan Devi, he is not in a position to deny her claim by any material whatsoever. 20. At the time of arguments of the parties on the said point no other person appeared to raise any objection and after allowing the parties to argue the matter, the order was reserved. However, much thereafter on 10.12.2008 I.A. No. 7336 of 2008 has been filed by the abovementioned Sri Naresh Kumar, claiming that the said purchase by Smt. Kanchan Devi was from the joint family fund and hence it is not the exclusive property of Smt. Kanchan Devi, rather it is the joint property of the entire family as is clear from the fact that the Official Liquidator had taken possession of the premises in question from Sri Naresh Kumar. This prayer has been vehemently objected to by the learned counsel appearing for Smt. Kanchan Devi stating that it is exclusively her property and Sri Naresh Kumar had no concern with the said property at all and the payment has been made by her through cheque. 21. From the facts and circumstances of the case as well as from the arguments of learned counsel for the parties including Sri Naresh Kumar it is quite apparent that Smt. Kanchan Devi is not from the family of Sri Naresh Kumar, rather she is the wife of Mahendra Prasad and she has purchased the said property through cheque from her own account and not from any joint account of the family of her husband. Furthermore, Sri Naresh Kumar is unable to show that the joint family had any nucleus from which such a property worth of Rs. 5.5 lacs could he purchased. Furthermore, Sri Naresh Kumar is unable to show that the joint family had any nucleus from which such a property worth of Rs. 5.5 lacs could he purchased. Furthermore, the said Sri Naresh Kumar himself appeared and submitted before this Court that he had no concern with the company or its Board of Directors but at that time he did not raise any such objection with regard to the property in question situated at 5 K.P. Road, Gaya, although the said property was included in the Company Petition and I.A. No. 4468 of 2004 filed by Kanchan Devi was pending in this Court. In the said circumstances the prayer of Shri Naresh Kumar appears to be absolutely frivolous and baseless. 22. In view of the fair stand taken by the Official Liquidator and in the aforesaid facts and circumstances and also considering the admitted position as well as the materials on record it has become quite apparent that Smt. Kanchan Devi is the owner of the property in question on the basis of registered deeds of transfer from the original owner and their partition deed, which could not be denied and disproved by any other party. Furthermore the said transfer deeds have also been duly acted upon as is clear from the order of mutation and receipts from the authorities concerned. 23. Accordingly, it is held that the applicant Smt. Kanchan Devi is the owner of the property in question, namely, portions of Holding No. 6 (new holding nos. 7 and 7A) of Ward No. 4 of Gaya Municipal Corporation bearing Survey plot no. 647 appertaining to C.S. Plot No. 11912 situated in 5-Krishna Prakash Road, Gaya as detailed in the said sale deeds from the aforesaid two persons and hence the said property is hereby directed to be excluded from the properties of the Company-in-liquidation in possession of the Official Liquidator. The applicant is directed to contact the Official Liquidator and get a time and date fixed on which date the said property shall be handed over by the Official Liquidator to the applicant Smt. Kanchan Devi within one month. 24. Thus I.A. No. 4468 of 2004 (Flag-17) is finally disposed of in view of the directions of the Honble Supreme Court vide order dated 13.8.2008 passed in Civil Appeal No. 5043 of 2008 arising out of S.L.P. (C) No. 2909 of 2006. 24. Thus I.A. No. 4468 of 2004 (Flag-17) is finally disposed of in view of the directions of the Honble Supreme Court vide order dated 13.8.2008 passed in Civil Appeal No. 5043 of 2008 arising out of S.L.P. (C) No. 2909 of 2006. Furthermore in view of the above order, I.A. No. 7336 of 2008 (Flag-35) filed by Sri Naresh Kumar is hereby rejected. Report dated 4.12.2008 (Flag-34) is pressed by the learned Official Liquidator for according sanction of Rs. 33,000/- for payment of professional fees to Sri Devashis Bharuka. Advocate, Supreme Court out of the sale proceeds. No objection is raised on the such report which is found to be just and proper and accordingly the required sanction is hereby accorded.