Mundrika Prasad Singh v. Dura Cast (India) Pvt. Ltd.
2009-12-04
RAMESH KUMAR MERATHIA
body2009
DigiLaw.ai
Order I.A. No. 2214 of 2009. This interlocutory application has been filed on behalf of M/s Leela Industries_ auction purchaser-applicant for a direction on the Jharkhand State Electricity Board (for short "the J.S.E.B.") for providing electrical connection to the Unit purchased by it in the auction sale held by this court in this winding up proceeding. 2. It is submitted that after being successful in auction, the applicant deposited the entire consideration amount with the official liquidator and thereafter possession of the assets of the company under liquidation was handed over to the applicant on 17.7.2009 by the official liquidator. Then it applied for electrical connection on 20.7.2009 but the application was not received by the Electrical Executive Engineer, JSEB and he refused to grant electrical connection on the ground that there is outstanding against the erstwhile company to the tune of Rs. 15 lacs and unless such dues are paid, the electrical connection cannot be provided to the premises in question. Relying on the judgment of Isha Marbles VS. Bihar State Electricity Board [ (1995)2 SCC 648 ] and AI Champdany Industries Ltd. VS. Official Liquidator [ (2009)4 SCC 486 ], it is submitted that the Board cannot raise such objection. 3. On the other hand, Mr. Rajesh Shankar, learned counsel appearing for the JSEB justified the demand' of the dues of the erstwhile company from the applicant. He submitted that a certificate case was filed in the year 1998-99 for realisation of the said dues which can be recovered as land revenue. He further submitted that the official liquidator should have mentioned about the dues of. JSEB and other dues, if any, on the company under liquidation while publishing notice, so that the purchaser could enquire about such dues before making any offer and, in any event, before making offer, the applicant should have verified about the dues on the company under liquidation including the dues of the JSEB. He relied on the judgment of Paschimanchal Vidyut Vitran Nigam Limited vs. D.V.S. Steels and Alloys (P) Limited [ (2009)1 SCC 210 ] and submitted that the applicant is bound to clear the dues of the company under liquidation for getting electricity connection. 4.
He relied on the judgment of Paschimanchal Vidyut Vitran Nigam Limited vs. D.V.S. Steels and Alloys (P) Limited [ (2009)1 SCC 210 ] and submitted that the applicant is bound to clear the dues of the company under liquidation for getting electricity connection. 4. Counsel appearing for the Bihar State Financial Corporation (for short lithe BSFC") submitted that the dues of BSFC on the company under liquidation is to the extent of Rupees Three Crores Seventy Two Lacs and odd against which assets of the company under liquidation has been sold only at a meager sum of Rs. 26 lacs over which the BSFC has got 1st charge being secured creditor and JSEB is only an unsecured creditor. - 5. The official liquidator - pointed out that in the notices published in the newspaper on 19.11.2008 and again on 21.3.2009, it was clearly• indicated that such notices may be treated as notice to secured/unsecured creditors, and then notice inviting claims from the creditors to prove their claim was published on 24.8.2009 but the JSEB did not respond to any of the notices. He further said that it was not necessary to mention the dues and liability on the company under liquidation in the notices published in this winding up proceeding. 6. It appears that in spite of repeated efforts, nobody turned up to purchase the assets of the company under liquidation. Ultimately sale .notices were published "on as is where is whatever there is basis with a reserve price of Rs. 42 lacs which was reduced to Rs. 33.50 lacs in the subsequent notice. Pursuant to the said notices, one Mr. Santosh Kumar's offer was received for Rs. 18.52 lacs for purchase of the Unit in question. The applicant intervened and wanted to make its offer. It was allowed to inspect the Unit. Then open bid was held between Santosh Kumar and the applicant and the applicant made highest bid of Rs. 26 lacs. BSFC was directed to inform this Court whether it was agreeable to sell the Industry in question for that amount. Though reluctantly but ultimately BSFC agreed for sale of the Unit for the said amount. Accordingly, the highest offer of the applicant was accepted and the sale was confirmed by order dated 27.5.2009. The applicant deposited the entire amount with the official liquidator and was given possession of the Unit in question.
Though reluctantly but ultimately BSFC agreed for sale of the Unit for the said amount. Accordingly, the highest offer of the applicant was accepted and the sale was confirmed by order dated 27.5.2009. The applicant deposited the entire amount with the official liquidator and was given possession of the Unit in question. It applied for electricity connection but the same was refused on the ground that unless the dues on the erstwhile company is not paid, electrical connection cannot be given. Such objection of the JSEB is absolutely against the judgments of Isha Marbles and AI Champdany Industries Ltd. (supra). It was, inter alia, held in the case of Isha Marbles that where the premises comes to be owned or occupied by the auction purchaser and when the purchaser seeks supply of electric energy, he cannot be called upon to clear the past arrear as condition precedent to supply. Following the judgment of Isha Marbles, it was held in AI Champdany Industries Ltd. that the Companies Act in relation to winding up proceeding is a special law. It was then observed that the fact that the company went in liquidation was given due publicity but the Municipality did not file its claim before the official liquidator and did not stand in the queue to get the same recovered and/or adjusted from the sale proceeds. It was further observed that once the property is sold, the assets of the company are required to be distributed to the creditors in order of preference. It was also observed that the Municipality was an unsecured creditor and was not a preferential creditor. In the present case also, JSEB did not respond to the notices published in the newspaper regarding the fact that the company went in liquidation. It did not raise any claim before the official liquidator in spite of publication of notice. The stand of JSEB that a certificate case is pending against the company under liquidation for realisation of the dues, which can be recovered as land revenue, is of no help to JSEB. In any event, JSEB is an unsecured creditor. The judgment of Paschimanchal Vidyut Vitran Nigam limited (supra) is not applicable in the present case. That judgment is to be read in the context of the fact situation of that case which are quite different from the case in hand as would appear from paragraphs 10 to 15 thereof.
In any event, JSEB is an unsecured creditor. The judgment of Paschimanchal Vidyut Vitran Nigam limited (supra) is not applicable in the present case. That judgment is to be read in the context of the fact situation of that case which are quite different from the case in hand as would appear from paragraphs 10 to 15 thereof. Moreover, it is settled position that the judgments of Courts are to be read in the context of the fact situation of the case. See Paragraph-19 of the judgment in Haryana Financial Corporation vs. Jagdamba Oil Mills [ (2002)3 SCC 496 ]. The judgments of Isha Marbles and AI Champdany Industries ltd. (supra) are fully applicable in the present case. It may also be noticed that the judgment of IshaMarbles, (a three Judges Bench) was not placed before the Court in the case of Paschimanchal Vidyut Vitran Nigam Limited. 7. In the facts and circumstances of the case and the legal position noticed above, the objection of the JSEB is rejected and it is directed to provide electrical connection to the applicant-Leela Industries within two weeks from completion of formalities by the applicant in that regard. 8. I.A. No. 2214 of 2009 is disposed of.