Judicial Analysis Court Copy Headnote Facts Arguments Court observation

IN THE HIGH COURT OF CALCUTTA
I.P. Mukerji, J.
Jugal Kishore Yadav and In the matter of: Gourepore Co. Ltd. (In Liqdn.) - Appellant
Versus
xxx - Respondent
CP No. 355 of 1997, CA No. 314 of 2009, CA No. 326 of 2009, CA No. 145 of 2009, CA No. 931 of 2010, CA No. 453 of 2013, CA No. 1079 of 2011, CA No. 945 of 2011, CA No. 894 of 2011, CA No. 245 of 2012 and CA No. 975 of 2010
Decided on : 14-07-2014

Advocates Appeared:
For the Appellant :Mr. Surajit Nath Mitra, Sr. Advocate, Mr. Jishnu Saha, Sr. Advocate, Mr. Joy Saha, Mr. Amitabha Ghosh, Mr. Sarbapriyo Mukherjee, Ms. Ruma Sikdar, Nr. Kedar Nath Yadav, Ms. Manju Agarwal, Mr. B. Mannot, Mr. P. Naskar, Ms. Ipsita Banerjee, Mr. Rudrajit Sarkar, Mr. S. Basu, Mr. S.C. Prasad, Mr. N. Bhattacharya, Mr. S. Dutta, Ms. Sutapa Sanyal, Mr. S. Banerjee, Mr. P.K. Tulsian, Ms. Suchismita Chatterjee, Mr. S.S. Roy, Mr. S. Dutta and Mr. A. Agarwala, Advocates.

In order to invoke the powers under Section 466 of the Companies Act, 1956, one has to be a creditor or a contributory.

Headnote:
WINDING UP - STAY OF PROCEEDINGS - SCHEMES FOR REVIVAL OF COMPANY - LOCUS STANDI - VALIDATION OF SHARES - COMPANIES ACT, 1956 - SECTIONS 466(1), 391(1) AND (2), 536(1) AND (2).
Fact of the Case:

Various entities made applications before the court for orders convening meetings of creditors to consider their respective schemes of arrangement for revival of the company in liquidation. Ashray Vyapar (Pvt.) Ltd claimed to have obtained assignment of the secured debts of the company and claimed to be the only secured creditor. Hilton Vinimay (Pvt.) Ltd claimed to have bought 32.46% of the paid-up capital of the company after the winding-up order.
Finding of the Court:

The court held that none of the applicants had the locus standi to come before the Court. Even on merits, none of the schemes presented before the Court deserved any consideration. The court also held that the alleged assignment of debts in favor of Ashray by the four secured creditors was dubious and no credence could be given to their support for Hilton.
Issues: 1. Whether the applicants had the locus standi to come before the Court. 2. Whether any of the schemes presented before the Court deserved any consideration. 3. Whether the alleged assignment of debts in favor of Ashray by the four secured creditors was valid.
Ratio Decidendi: 1. The court held that the applicants did not have the locus standi to come before the Court as they could not furnish any proof of the company's debt towards them. 2. The court held that none of the schemes presented before the Court deserved any consideration as they were not bona fide and lacked the essential elements of a bona fide scheme. 3. The court held that the alleged assignment of debts in favor of Ashray by the four secured creditors was dubious as it was made without registration and without proper stamps.
Final Decision: The court dismissed each of the applications not disposed of earlier. Any stay order on the winding-up was vacated. The court directed the Official Liquidator to proceed with the winding-up of the Company with the greatest despatch, so that it is complete by 31st December, 2015 positively.

JUDGMENT

I.P. Mukerji, J.

The company Gourepore Company Ltd was directed to be wound up, on 26th November, 1997, by an order of S.K. Sinha J. of this Court. It was at the instance of R.K. Garodia and company, in a winding up application (C.P. 355 of 1997).

2. Several applications are before me for consideration. They have been made by various entities.

3. There is a company by the name of Ashray Vyapar (Pvt.) Ltd. It claims to have obtained assignment of the secured debts of the company towards Industrial Instrument Bank of India Allahabad Bank, Indian Bank and United Bank Of India by Deeds of Assignment. This debt close to Rs. 50 Crores was allegedly acquired by Ashray for only about Rs. 9.5 crores. Now, they claim to be in the shoes of these secured creditors. Hence, they say they are the only secured creditor.

4. There is another company by the name of Hilton Vinimay (Pvt.) Ltd. It claims to have bought 32.46% of the paid up capital, of the company in liquidation i.e., 3,11,664 shares after the winding up order. On 25th August, 2011, Ashray apparently entered into a Memorandum of Understanding with Hilton, as a result of which Ashray is today supporting the cause of Hilton to run the undertakings as a going concern.

5. The company, before liquidation had 3700 workers. They should still be on the rolls maintained by the Official Liquidator. They have six unions. The claim by the workers on account of their unpaid dues is around Rs. 11 crores. Hilton has entered into a Memorandum of Understanding with the workers, also on 3rd September, 2011. As a result of this their learned counsel, Mr. Sarbapriyo Mukherjee submitted that the workers were supporting Hilton to run the company.

6. Other companies and persons have also made applications for orders from this court convening meetings of creditors to consider their respective schemes of arrangement for revival of the company.

7. I will first briefly discuss the nature and scope of the applications before me which are for other reliefs but indirectly connected with the schemes for revival of the company.

(1) Hilton Vinimay Pvt. Ltd. (C.A. 145 of 2009)

Hilton made an application on 25th February, 2009 for stay of the winding up order and for appointment of a Special Officer to transfer 3,11,664 equity shares allegedly purchased by them from the Poddar Group.

They also asked for prayers for calling a general meeting of the company for constituting the Board of Directors with the Special Officer as the Chairman. Directions, were also sought, on the Board of Directors to frame a scheme for revival of the company.

(2) Hilton Vinimay Pvt. Ltd. (C.A. 326 of 2009)

This application was made by Hilton seeking orders from this Court for validation of 3,11,664 equity shares of Rs. 10/- each in the company, said to be fully paid up, purchased by them subsequent to commencement of winding up. This application has asked for consequential reliefs directing lodging of these shares along with the transfer deeds, with the Official Liquidator for registration thereof. These shares were claimed to have been purchased from Raghuvar Management Pvt. Ltd.

(3) Hilton Vinimay Pvt. Ltd. (C.A. 314 of 2009)

This application was filed by Vinimoy for referring the matter back to the BIFR for considering the scheme presented by them and Ashray Pvt. Ltd. for revival of the Company.

(4) Gourepore Jute Mill Shramik Union (C.A. 975 of 2010)

This is an application by the workers' union to intervene in the winding up petition C.P. 355 of 1997 for stay of order dated 26th November, 1997 and for constitution of a Board of Directors.

(5) Ashray Vyaapar Private Limited

This is an application by Ashray for liberty to provide watch and ward service to the assets of the company.

Provisions of Law:

Now, certain provisions of the Companies Act, 1956 have to be noticed.

The first is Section 466 (1). It is inserted below:

466. (1) The Court may at any time after making a winding up order, on the application either of the Official Liquidator or of any c

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