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2016 DIGILAW 848 (CAL)

Kishan Toshniwal v. Shew Sankar Shaw

2016-11-03

ISHAN CHANDRA DAS, JYOTIRMAY BHATTACHARYA

body2016
Jyotirmay Bhattacharya, J. : 1. This first miscellaneous appeal is directed against an order dated 6th April, 2016 passed by the learned Civil Judge (Senior Division), 2nd Court at Howrah in Title Suit No. 173 of 2016 at the instance of the plaintiffs/appellants. 2. By the impugned order the plaintiffs’ prayer for ad-interim injunction was refused by the learned Trial Judge. The legality and/or propriety of the said order passed by the learned Trial Judge is under challenge in this first miscellaneous appeal at the instance of the plaintiffs. 3. The instant appeal was admitted for hearing on 12th July, 2016. After the appeal was admitted, an ad-interim order of injunction was passed by this Court on an application for injunction filed by the appellants in connection with this appeal. By the said order, the parties were directed to maintain status quo as regards their possession in respect of the suit property as well as nature and character thereof till the end of August, 2016 or until further order whichever was earlier. The said interim order was extended from time to time and the same is still continuing. 4. Today when we are considering the appellants’ prayer for extension of interim order, we are invited by the learned counsel appearing for the parties to dispose of the appeal itself on merit by dispensing with the requirement of filing paper book in this appeal. We are informed by the learned counsel appearing for the parties that all relevant papers which are necessary for disposal of the appeal are annexed to the application for interim injunction. 5. On such prayer being made by the learned counsel appearing for the parties, we have decided to hear out the appeal on the basis of the materials available before us by dispensing with the requirement of filing paper book in this appeal. 6. In course of hearing of the application for interim injunction filed by the appellants in connection with this appeal, we are informed by the learned counsel appearing for the parties that Official Liquidator was appointed by the Company Court over the suit property and the movables including the plants and machineries lying thereon. We are also informed that the Official Liquidator has already taken symbolic possession over the suit property. We are also informed that the Official Liquidator has already taken symbolic possession over the suit property. We are also informed that the Bank being the mortgagee had also approached the Company Court for disclaiming the suit property, so that they can sell the suit property for recovering its dues from the debtor. 7. The learned Company Court refused to allow the Bank’s prayer for disclaiming the suit property on the ground that the question as to whether the property belonged to the company in liquidation or to the directors of the said company in their personal capacity, is yet to be decided by the Debt Recovery Tribunal in a proceeding initiated by the Bank under the SARFAESI Act. In this context, we directed the appellants to serve notice upon the Official Liquidator for ascertaining the exact state of affairs relating to the dispute involved in the winding up proceeding. Pursuant to such notice issued upon the Official Liquidator, the Official Liquidator appears before this Court through his counsel who informs this Court that the Official Liquidator has already taken symbolic possession of the suit property and the movables lying thereon and the Company Court has also permitted the Official Liquidator to sell the movables lying over the suit property. 8. Thus, we find that the dispute as to whether the property belongs to the company in liquidation or to the directors of the said company in their individual capacity, is yet to be decided by the Debt Recovery Tribunal. Unless such dispute is resolved by the Debt Recovery Tribunal, the Bank cannot insist upon recovering possession of the suit property from the plaintiffs/appellants who admittedly are in actual physical possession of the suit property on the strength of an agreement for sale entered into between the plaintiffs and the defendant no.1 being the director of the company in liquidation. Thus, we are of the view that the interim order which was passed by this Court on 12th July, 2016 should continue till the disposal of the plaintiffs’ application for temporary injunction which is yet to be decided by the learned Trial Judge. 9. We, thus, dispose of this appeal by permitting the defendants to file objection against the plaintiffs’ application for temporary injunction within three weeks from date; reply, if any, be filed by the plaintiffs/appellants within a week thereafter. 9. We, thus, dispose of this appeal by permitting the defendants to file objection against the plaintiffs’ application for temporary injunction within three weeks from date; reply, if any, be filed by the plaintiffs/appellants within a week thereafter. Learned Trial Judge is requested to make all endeavour to dispose of the plaintiffs’ application for temporary injunction by the end of January 2017. 10. The interim injunction which was passed by this Court on 12th July, 2016, whereby the parties were directed to maintain status quo as regards their possession in respect of the suit property as well as nature and character thereof, will continue till the disposal of the plaintiffs’ application for temporary injunction. 11. We, however, make it clear that while disposing of this appeal, we have not passed any order staying the proceeding before the Debt Recovery Tribunal. As such, the Debt Recovery Tribunal is free to proceed with the proceeding pending before it, in accordance with law. 12. We further make it clear that we have not passed any order restraining the Official Liquidator from taking steps for liquidating the claims of the creditors in accordance with law. Thus, the Official Liquidator is also free to take whatever steps he deems fit in accordance with law in the liquidation proceeding. 13. Both the appeal and the application filed in connection therewith are, thus, disposed of. 14. Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.