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2008 Supreme(Bom) 700
2008(4) ALL MR 149
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
(AURANGABAD BENCH)
N.V. DABHOLKAR & S.B. DESHMUKH, JJ.
The Maharashtra State Co-operative Bank Ltd.
Vs.
State of Maharashtra & Ors.
Writ Petition No. 1278 of 2004
WITH Writ Petition Nos.330, 6600 of 2005
WITH Writ Petition Nos.6092, 6592, 6955, 7907 of 2006
WITH W.P. No.5212, 5221, 5844 of 2007
Decided On: 2nd June, 2008.
Shri. R.N. DHORDE, Advocate, for the Petitioner.
Shri. N.B. KHANDARE, Govt. Pleader for Respondent No.1 to 3. (Respondent No.4 deleted).
Shri. DILIP BANKAR PATIL, Advocate, for Respondent No.5.
Shri. P.R. PATIL, Advocate for Respondent No.6.
Shri. V.D. SALUNKE, Advocate, for Respondent Nos.7 to 11.
Shri. B.L. SAGAR KILLARKAR, Advocate, for Respondent Nos.12 to 14.
Shri. P.M. SHAH, Senior Counsel, i/by
Shri. P.V. BARDE, Advocate, for Liquidator-Boardadded Respondent No.15.
Headnote:Civil Procedure Code, 1908 - Order VI, Rule 17-Amendment of pleadings-Language of prayer clause sought to be amended-Amendment sought being correction of clerical/typographical error or inadvertent error-Application for amendment allowed.-At the conclusion of his arguments, Advocate Shri Patil has prayed for amendment in this prayer clause, by deletion of clause "decision dated 4.10.2006, Exh. A page 16" and substitution of the same by "the decision dated 1.8.2006, Exh. O, page 97". Learned Senior Counsel Shri P.M. Shah has taken strong exception to the same. However, on reference to Exhibit A and Exhibit O of writ petition No. 7907/2006 it is evident that Exhibit A is a decision dated 4.10.2006 and the decision regarding subject factory is resolution No. 6. On reading text, it is evident that, this was a decision to cancel the tender of Ratnaprabha Sugars/writ petitioner and giving the factory on lease. On reference to pages 97-98 of the petition, it is evident that, those are the minutes of the meeting held on 1.8.2006, wherein a decision was taken that the terms of compromise should be filed in the Court by MSC bank, liquidator, worker’s union and Ratnaprabha Sugars. There is further decision that, thereafter Ratnaprabha Sugars should issue Demand Draft of the bid amount in favour of the liquidator. Eventually, language of prayer clause (A) sought to be amended, is quite elaborate and it is evident, when we take into consideration the text of the decisions dated 4.10.2006 and 1.8.2006, that the clause sought to be deleted is an error, may be clerical or inadvertent error. If, by decision dated 4.10.2006 Ratnaprabha Sugars is not directed to deposit the bid amount with the liquidator by a Demand Draft, reference to the said decision in prayer clause (A) is obviously erroneous. We are, therefore, inclined to allow the amendment, the same being correction of clerical/typographical error, or inadvertent error. The language of other contents of prayer clause (A) is clearly referable to the decision dated 1.8.2006, which is prayed to be got complied by the Respondents. Oral application for amendment is, therefore allowed.
Maharashtra Co-operative Societies Act, 1960 - Sections 102 to 107-Co-operative sick sugar factory-Conversion of into private factory-Conversion, though may be sentimentally painful, can be said to be recognized by Act itself-Sick sugar factory not entitled to get financial package for revival either from NABARD or State/Union.-The fact remains that these members have not brought on record, any details of efforts on their part to persuade NABARD and possibility of NABARD making available some financial package to the sick sugar factory. Merely because some factories are having more debts than the subject factory and are still being run on lease, that is no ground to believe that running the sick sugar factory on lease is financially viable and restructing to be possible.
In fact, immediate requirement can be shown in brief, as follows :
Dues of MSC bank as on 31.3.2000 : Rs. 22.65 crores
Interest from 1.4.2000 to 15.5.2008 : Rs. 14.71 crores
(Calculated at 6 per cent p.a. since the date of appointment of the Liquidator)
Salaries and allowances of workers : Rs. 12.26 crores
............... .............
Add : Requirement for revitalization
Total Rs. 49.62 crores + Rs. 11.00 crores
Total Rs. 60.62 crores
Thus, immediate need, if the factory is to start on not be necessary.
A sentimental appeal was also advanced by Advocate Shri Chandak that in case sale is confirmed and revival package is not granted, one factory, from co-operative sector would go to private sector. In this context it must be taken into account that even the committee appointed by the Government to take a decision on the future of sick sugar factories, had decided to sell the sick factories and had, accordingly, issued tender notices. On reference to Section 105(1)(c) of the MSC Act, the same reads thus :
"Power of the Liquidator.-The Liquidator appointed under Section 103 shall have power, subject to the rules and the general supervision, control and directions of the Registrar :
(a) x x x x x
(b) x x x x x
(c) to sell immovable and movable property and actionable claims of the society by public auction or private contract, with power to transfer the whole or part thereof to any person or body corporate, or sell the same in parcels."
Thus, although such conversion of co-operative sick sugar factory into private factory may be sentimentally painful, can be said to be recognized by MCS Act itself.
( 1 ) ALL ten writ petitions, together with four surviving civil applications therein, are being considered together, for disposal. Common factor in all these matters, is Godavari Dudhna Sahakari sakhar Karkhana Ltd. at and post office Dev nandra, Taluka Pathri, District Parbhani (henceforth, referred to as "the sick factory" ). The sick factory has come to grinding halt, so far as its business of production of sugar is concerned. After interim order of liquidation under Section 102 of the Maharashtra Cooperative societies Act, 1960 ("mcs Act" for brevity's sake)dated 14. 3. 2002, finally, liquidation of the said sick factory, which is a specified co-operative society under Section 73-G of the MCS Act; is ordered on 15. 5. 2002. During the period the sick factory is under liquidation, there had been oscillation of decisions by the authorities under the MCS Act, regarding fate of the sick factory, whether to run it by granting lease or to effect sale of the same for satisfying its debts. This is because, the sick factory is heavily indebted to the Apex bank of the Cooperative Sector in the State, i. e. The Maharashtra State Cooperative bank. ("msc Bank" for brevity's sake ).
( 2 ) THE Petitioners in ten petitions and reliefs prayed by each of them can be grouped for convenient reference as under; first Writ petition No. 1278 of 2004 is filed by MSC Bank, which claims to be a secured creditor qua the sick factory under liquidation. By the writ petition, as it stood before amendment to the pleadings on 6. 7. 2004, the MSC Bank prayed for a writ of prohibition against respondent Nos. 1 to 5 from transferring or dealing with the assets of the sick factory in any manner whatsoever to any third party, including respondent No. 6. (Respondent No. 6 henceforth, shall be referred to as "ratnaprabha sugars". It is the purchaser of the sick sugar factory at the auction held in January, 2004 ). Respondent Nos. 1 to 3 in this writ petition, are the authorities under the MCS Act and respondent Nos. 4 and 5 are the managing directors of the sick factory. By amended pleadings, the MSC Bank also prayed that Respondent Nos. 1 to 3 and 5 may be directed to handover the entire assets of the sick factory under liquidation to the petitioner-MSC bank in pursuance of the notice dated 14. 8. 2003 issued by the Bank under section 13 (2) of the Securitization and reconstruction of Financial Assets and enforcement of Security Interest Act, 2002 (Henceforth, referred to as "the Securitization act" for the sake of brevity.) By further amendment, granted on 28. 11. 2006, the MSC bank challenges the decision of Respondent no. 1-State dated 4. 10. 2006, on subject No. 6 which relates to the said factory in liquidation. By this decision, a committee titled as "mantri samiti" i. e. "ministers Committee" has resolved to cancel the decision dated 10. 2. 2004, by which it was decided to accept the tender of ratnaprabha Sugars. It was further decided that, action should be taken to allow the sick factory to be run on lease, after vacation of "status-quo" ordered by this court. By this prayer inserted as a result of second amendment, the msc Bank now opposes the decision of cancellation of sale in favour of Ratnaprabha sugars and letting out of sick sugar factory to be run on lease. Further prohibition/injunction against possible leasing out of the sick factory by Respondent Nos. 1 to 5, is prayed for and directions are solicited to Respondent Nos. 1 to 5, that they should allow the MSC Bank to deal with the assets of the sick factory, as the secured creditor, in accordance with the law, presumably; the Securitization Act. We may state here itself that this court vide order dated 24. 3. 2004 in this writ petition, has ordered status-quo in following terms;
" "parties to maintain status-quo in relation to the properties in question" this order is confirmed after hearing parties when rule was issued by an order dated 29. 7. 2004. "
By orders passed in
