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2015 DIGILAW 132 (GUJ)

Vanadoulat Patil v. Gujarat Industrial Trucks

2015-02-03

R.M.CHHAYA

body2015
JUDGMENT : R.M. Chhaya, J. 1. Petitioners have filed this petition under Sections 433 and 434 of the Companies Act, 1956 (the Act) for winding up of the respondent-Company viz. Gujarat Industrial Trucks Limited. Petitioner No. 1 is the representative of petitioner No. 2-Union. 2. Present petition is based on the fact that the respondent-Company declared a 'lock-out', which was declared to be illegal and the petitioners claim wages, gratuity and retrenchment compensation, as per the award of Industrial Tribunal, Surat, dated 31.12.1998 in Reference (IT) No. 9 of 1995, which has become final. 3. Record indicates that the petition was filed on 18.01.2003 and the same came to be admitted vide order dated 24.06.2009 by this Court (Coram: Jayant Patel, J). Advertisements were published in Gujarati dailies - 'Gujarat Mitra' and 'Gujarat Darpan' that thereafter vide order dated 26.09.2013 this Court passed an order directing the petitioners to file affidavit by producing advertisements and bill(s) of publication of the said advertisements on record, which was brought on record by the petitioners. Pursuant to the admission of this matter, the respondent-Company filed a reply mainly contending that the award of the Industrial Tribunal is challenged and further that Suit No. 1497 of 1993 is pending before Bombay High Court. Petitioners have also filed affidavit-in-rejoinder to the said reply of the respondent-Company. Petitioners have also filed further affidavit-in-reply bringing on record order dated 06.11.2001 passed by Bombay High Court in Chamber Summons No. 1431 of 2001 in Suit No. 1497 of 1993. It appears that thereafter the respondent-Company has also filed additional affidavit-in-reply dated 16.02.2009, to which the petitioners have also filed additional affidavit-in-rejoinder. 4. Before considering the contentions raised by the petitioners in the present petition, the following facts are noteworthy, some of which have also occurred after filing of this petition. 5. Petition is based on the award dated 31.12.1998 passed Industrial Tribunal, Surat in Reference (IT) No. 9 of 1995, whereby the Tribunal declared that the lock-out declared by the respondent-Company since 25.11.1992 was illegal and it further directed the respondent-Company to withdraw the lock-out and give work to the workers and pay wages from 25.11.1992 up to the date of continuation of the lock out. It further appears that while those proceedings were pending before Bombay High Court the present petitioners filed Recovery Application Nos. 1244-1317/2000 and Recovery Application Nos. It further appears that while those proceedings were pending before Bombay High Court the present petitioners filed Recovery Application Nos. 1244-1317/2000 and Recovery Application Nos. 97-1202/2001 for recovery of dues under Section 33(c)(2) of the Industrial Disputes Act, 1947, which came to be allowed by the Labour Court and an amount of Rs. 3,59,08,694/- was directed to be paid to petitioner No. 2-Union. 6. It appears that being aggrieved by the said award, the respondent-Company filed Misc. Application (IT) No. 1 of 1999 for quashing the ex-parte award dated 31.12.1998, which application came to be rejected vide order dated 29.09.2000 by Industrial Tribunal, Surat. Record further indicates that the respondent-Company filed Special Civil Application No. 9042 of 2002 before this Court challenging the award of the Industrial Tribunal, which came to be dismissed vide order dated 18.07.2012. Against which, the respondent-Company preferred Letters Patent Appeal No. 681 of 2013 before Division Bench of this Court challenging the aforesaid order passed in the writ petition, which also came to be dismissed vide judgment and order dated 06.01.2014, wherein it has been observed thus: "5. Having gone through the impugned judgment, we find that the learned Single Judge has not only observed about the lack of interest displayed by appellant in the litigation before the Tribunal but also apathy towards the workmen. Even in the conciliation proceedings, the appellant-company had not clarified its stand. 6. It appears that no Notice or warning was issued to the workmen regarding the strike or that the company has not locked them out or that they will have to suffer the consequences of their so called illegal strike. The reference was filed in the year 1995 and the ex-parte award came to be passed on 31.12.1998. After rejection of the application for setting aside ex-parte award on 29.09.2000, the appellant filed the captioned petition after almost two years, i.e. on 28.08.2002, without providing any satisfactory explanation for the said delay, which has been elaborately discussed by the learned Single Judge in the impugned judgment. 7. The entire sequel of events display the intention of the appellant-company to avoid liability in the nature of legitimate dues of the workmen. Though sufficient opportunity was not afforded to the appellant, the same was not availed. 7. The entire sequel of events display the intention of the appellant-company to avoid liability in the nature of legitimate dues of the workmen. Though sufficient opportunity was not afforded to the appellant, the same was not availed. The manner in which the entire proceedings were handled by the appellant shows that it has made every attempt to shirk away its responsibility and liability. 8. In view of the above reasons, we find no reasons to entertain this appeal. Hence, the appeal is dismissed." As per the learned counsel appearing for the petitioners as well as the respondent-Company the said judgment and order attains finality. 7. It may further be noted that Bank of India, respondent No. 2 herein, instituted the aforesaid Suit No. 1497 of 1993 before Bombay High Court for recovery of the outstanding dues from the respondent-Company. It appears from the record that petitioner No. 2 informed the respondent-Bank appraising about the award dated 31.12.1998 passed by the Industrial Tribunal. As per the information given by the learned counsel appearing for the respondent-Company it is submitted that by order dated 11.07.1995 a court receiver was appointed and the properties of the respondent-Company were sold by a publication auction for Rs. 1,50,00,000/- and the same was deposited by the purchaser before the court receiver. 8. It was also further informed that petitioner No. 2-Union filed Chamber Summons No. 911 of 2000 in Suit No. 1497 of 1993 seeking direction to impleaded as party to the aforesaid suit, which came to be dismissed for default. Petitioner No. 2 thereafter filed an appeal, wherein notice of motion was filed for an order directing the court receiver to deposit the sale proceeds in accordance with the award and the balance amount to be paid to the respondent-Bank. It further appears that Division Bench of Bombay High Court vide order dated 02.05.2002 directed the court receiver to release the amount in favour of the respondent-Bank, subject to the bank filing written undertaking before the receiver that it will bring back the money, if so directed by the court. 9. It further appears that the petitioners also moved Applications No. 18-102/2002 before the Gratuity Controlling Authority for direction directing the respondent-Company to pay the same and for a certificate and the Controlling Authority also passed an order and issued certificate in favour of each workman of the petitioner-Union in the year 2003. 9. It further appears that the petitioners also moved Applications No. 18-102/2002 before the Gratuity Controlling Authority for direction directing the respondent-Company to pay the same and for a certificate and the Controlling Authority also passed an order and issued certificate in favour of each workman of the petitioner-Union in the year 2003. Record also indicates that the petitioners have filed Special Civil Application Nos. 12051/2012 and 627/13 for recovery of wages, gratuity, etc., as per the order passed in the recovery applications by the Labour Court and the same are pending, as informed by the learned counsel appearing for the parties. 10. It further appears that the appeal filed by petitioner No. 2-Union before Bombay High Court is also disposed of as having become in fructuous as per order dated 04.02.2009 passed by Division Bench of Bombay High Court. 11. In the aforesaid background of facts, learned Counsel appearing for the petitioners submitted that the respondent-Company is not at all a going concern and the respondent-Company is unable to pay its debts and has lost its financial substratum. 12. Ms. Kruti M. Shah, learned counsel appearing for the petitioners, has asserted that the dues are admitted dues, in light of the fact that even the challenge to the judgment and award passed by Industrial Tribunal as well as order dated 07.01.2002 passed in the recovery applications by the Labour Court have become final and therefore the respondent-Company has no defence in this matter. It was also asserted that the dues of the workmen are not paid since long by the respondent-Company and as it has acquired inability to pay the debts; this is a fit case wherein this Court would be passed order of winding up of the respondent-Company under the provisions of Sections 434 and 434 of the Companies Act, 1956. 13. Mr. Janak Japee, learned counsel appearing for the respondent-Company, has not been able to controvert the said fact. It has also not been able to controvert the statement that the respondent-Company is not a going concern. 14. Mr. Pranav G. Desai, learned counsel appearing for the respondent-Bank, has submitted that status of the proceedings before the Bombay High Court is not known. No other and/or further submissions are made by learned counsel for the parties. 15. It has also not been able to controvert the statement that the respondent-Company is not a going concern. 14. Mr. Pranav G. Desai, learned counsel appearing for the respondent-Bank, has submitted that status of the proceedings before the Bombay High Court is not known. No other and/or further submissions are made by learned counsel for the parties. 15. Considering the aforesaid facts and record of this case, it clearly transpires that the petitioners, who were workmen of the respondent-Company, approached Industrial Tribunal for recovery of the outstanding dues. It further transpires from the record of the petition and also recorded by Division Bench of this Court in Letters Patent Appeal No. 681 of 2013 that only after recovery certificate was issued the respondent-Company approached this Court by way of filing a writ petition. The observations made by Division Bench of this Court in Letters Patent Appeal No. 681 of 2013 clearly transpires the fact that the dues of the petitioners are still unpaid. There is nothing on record to show that the respondent-Company is a going concern, however, such assertion is not denied by the respondent-Company. The facts and record of the petition therefore clearly establishes the fact that the respondent-Company is unable to pay its debts and is not a going concern. The respondent-Company has thus lost its financial substratum and is therefore liable to be wound up under Sections 433 and 434 of the Companies Act, 1956. 16. In light of the aforesaid facts therefore petition is allowed. Respondent-Gujarat Industrial Trucks Limited is ordered to be wound up under Sections 433 and 434 of the Companies Act, 1956. Official Liquidator, attached to this Court, is hereby appointed as Official Liquidator of the respondent-Company, who shall take all necessary steps in accordance with law. Official Liquidator is further directed to take over charge of the assets - both movable and immovable of the respondent-Company, including account books and all relevant record. 17. Petition is allowed to the aforesaid extent.