Back
2024 Supreme(Jhk) 686
IN THE HIGH COURT OF JHARKHAND AT RANCHI
SHREE CHANDRASHEKHAR, A.C.J., NAVNEET KUMAR, J.
Daulat Ram Jain, S/o. Lt. Pannalal Jain & Ors. - Appellants
Versus
Tulsi Goshwami, S/o. Moti Goshwami & Ors. - Respondents
L.P.A. No. 74 of 2024 With L.P.A. No. 61 of 2024
Decided On : 09-04-2024
For the Appellants :Mr. S.D. Sanjay, Sr. Advocate, Mr. Vishal Kumar, Mr. P.A.S Pati, Mr. Ajit Kumar, Sr. Advocate, Mr. Vikalp Gupta.
For the Respondents: Mr. Manoj Tandon, Mr. Kumar Sundaram, Mr. Hemant Jain, Mr. Ranjan Kumar, Mr. Aditya Singh, Mr. Akchansh Kishore.
IMPORTANT POINT
The court clarified that observations regarding possession in a writ order should not prejudice the rights of any party involved.
Headnote:
(A) Limitation Act, 1963 - Section 5 - Condonation of delay - Applications for condonation of delay in filing Letters Patent Appeals were allowed as sufficient cause was shown. (Paras 1-2)
(B) Insolvency and Bankruptcy Code, 2016 - Liquidator's duties - The court clarified that the writ Court's observation regarding possession must not prejudice any party's rights. (Paras 14-15)
Facts of the case:
The Liquidator challenged the writ Court's observation regarding possession of properties, asserting it could hinder the transfer to auction purchasers.
Findings of Court:
The court emphasized that the observation should not prejudice any party's rights.
Issues: The main issue was whether the writ Court's observation could cause prejudice to the Liquidator's duties.
Ratio Decidendi: The court ruled that the observation must be interpreted to avoid prejudice to any party's claims.
Result: Appeals disposed of.
JUDGMENT :
Shree Chandrashekhar, A.C.J.
I.A No.1834 of 2024 (in L.P.A No.74 of 2024) and I.A No.1392 of 2024(in L.P.A No.61 of 2024)
I.A No.1834 of 2024 has been filed under section 5 of the Limitation Act, 1963 for condonation of delay of 44 days in preferring L.P.A No.74 of 2024 and I.A No.1392 of 2024 has been filed under section 5 of the Limitation Act, 1963 for condonation of delay of 31 days in filing L.P.A No.61 of 2024.
2. In view of the averments made in these applications, we think that sufficient cause has been shown by the applicants for condoning the delay in filing these Letters Patent Appeals and, accordingly, I.A No.1834 of 2024 and I.A No.1392 of 2024 are allowed.
L.P.A No.74 of 2024 with L.P.A No.61 of 2024
3. Daulat Ram Jain, who is the Liquidator and the appellant in L.P.A No.74 of 2024, has challenged the writ Court’s observation in paragraph no.14 of the order dated 30th November 2023 passed in WP(C) No. 5168 of 2023.
4. In WP(C) No. 5168 of 2023, the writ Court made the following observations:
“14. Under the facts and circumstances of the case, this writ petition is disposed of with the observation that whosoever is in possession of the two properties in question as has already been referred in the foregoing paragraphs of this judgment shall not be dispossessed from the same without adhering to the due process of law.”
5. Mr. S.D. Sanjay, the learned senior counsel appearing for the Liquidator referred to the decisions in “Phatu Rochiram Mulchandani v. Karnataka Industrial Areas Development Board” (2015) 5 SCC 244 and “Bajarang Shyamsunder Agarwal v. Central Bank of India” (2019) 9 SCC 94 and other judgments to submit that the Liquidator is under a legal duty to take steps for the preservation of the subject properties and hand over the vacant and peaceful possession of the properties to the auction sale purchaser. It is contended that the observation by the writ Court in paragraph no. 14 is likely to cause prejudice to the parties inasmuch as the Liquidator may face difficulties in transferring the subject properties to the auction sale purchaser. The learned senior counsel laid emphasis on “Phatu Rochiram Mulchandani” wherein the Hon’ble Supreme Court observed as under :
“12. Deprecating the inaction on the part of the Official Liquidator in not filing the appeal and thereby protecting the property of the Company in question the learned Senior Counsel relied upon the judgment in Rajratna Naranbhai Mills Co. Ltd. v. New Quality Bobbin Works, holding that the most important task assigned to the liquidator under the Companies Act, while acting as liquidator of a company ordered to be wound up, is to collect assets of the company and sell them and to distribute the realisation amongst all those who have claims against the company and payment must be made according to priorities fixed by law. This appears to be not only the foremost but the most basic duty of a liquidator of a company ordered to be wound up. Now, if the liquidator in the course of winding up is required to file suit for recovery of properties and assets of the company, one has only to imagine at what length of time winding-up proceedings can be brought to a close.”
6. In L.P.A No.61 of 2024, M/s Carbon Resources Private Limited which is the successful auction sale purchaser has also taken a similar stand to challenge the aforesaid observation by the writ Court.
7. Before the writ Court, Tulsi Goshwami who is the respondent no. 1 in these Letters Patent Appeals made the following prayers.
“(i) For issuance of an appropriate writ/order/direction,, including Writ of Mandamus, restraining Respondent No.2 in connivance with Respondent No.4 from forcefully dispossessing the Petitioner from the piece and parcel of the land having total area of 5256.34 decimal and 105 decimal, situated at Mouza Gadi Srirampur and Mouza Manjhiladih, bearing Thans Nos.267 and 268 appertaining to various Khata numbers and Plot numbers, which is in possession of the Petitioner sinc
