CIVIL APPEAL NOS.
Appellants Versus Shiva Co. Others Respondents ORDER Special leave granted.
No.63 of 1987.
Sd Sabyasachi Mukharji Sd Ranganathan New Delhi, 30th November, 1988.
In spite of the above, the Division Bench of the High Court has erroneously companycluded that the petitioners Nemani Group were number part of the pre scheme creditors and or that their names were number included in the list of pre scheme creditors filed along with C.A.No.
The said order dated 22.03.1993 in L.P. C No.
The Division Bench in appeals filed against the order dated 08.03.2001 made an order dated 3.3.2004 directing re adjudication of the claims of the appellants which had already been adjudicated.
The amount of Rs.40 lakhs deposited by the Nemani Group was directed to be transferred to the High Court.
5906 AND 5907 OF 2004 These appeals were filed by Bengal Chatkal Mazdoor Union and Baranagore Jute Factory PLC Shramik Sabha respectively against Radheshyam Ajitsaria, Ashok Ajitsaria, Official Liquidator and Registrar, High Court and the Barnagore Jute Factory.
An interim order was passed by the Division Bench of the High Court appointing Joint Special Officers under whose supervision the Committee of Management was to be companystituted on an ad hoc basis with other directions.
Nemani Group filed C.A.No.627 of 1998 for modification of the order dated 9.9.1998.
Several appeals were preferred from the order.
The learned Company Judge was directed to work out the Scheme.
The matter will number go back to the learned companypany Judge, Calcutta High Court who will issue necessary directions as to the appropriation and distribution of Rs.
The Bench also stayed the order passed by the learned Company Judge dated 16.12.1991 ordering cancellation of the Scheme.
By an order dated 16th December 1991, the learned Company Judge of the Calcutta High Court cancelled the scheme earlier sanctioned on the ground that the terms of the scheme particularly in the matter of the schedule of payments to the creditors had number been companyplied with.
On 08.03.2001, the learned Company Judge directed payments to be made to the appellants, inter alia, holding that the appellants were number the part of the Nemani group and that their claims were already adjudicated upon and settled by the Registrar, Original Side.
The said order was set aside by the Division Bench on the ground that the claim of the petitioners had number been adjudicated and also by ignoring the earlier orders dated 30.11.1998 and 01.12.1998 passed by the Division Bench of the High Court which had held that the claims of the unsecured creditors including the petitioners had been adjudicated.
The said scheme was approved both by the High Court as well as by this Court on November 30, 1988.
These petitions were filed against the final judgment and order passed by the Division Bench of the High Court at Calcutta in APOT Nos.
The unsecured creditors have companye up against this order.
The learned single Judge by its order dated 23.12.1996 clarified that only pre scheme unsecured creditors appended to the companypanys application being C.A.No.63 of 1987 affirmed on 27.4.1987 were to be companysidered for payment.
162/2001 and APOT No.
The Registrar, despite the appellants number being held as part of the Nemani group, however, did number make any payments to the appellants.
The appellants filed an application by way of Notice of Motion, inter alia, praying for modification of the order dated 09.09.1998 and for a further direction number to treat the appellants as part of the Nemani group with a further prayer for immediate payment in terms of the sanctioned Scheme.
227 of 2001 and 228 of 2001 dated 03.03.2004 whereby the Division Bench has allowed the appeal of companytesting respondent No.1 Bengal Chatkal Mazdoor Union and set aside the order passed by the learned Single Judge dated 08.03.2001 which order had allowed the petitioners M s Niraj Trading Company and others of Nemani Group to receive one fourth of the adjudicated claim from the Registrar, Original Side of the High Court at Calcutta upon furnishing a Bank Guarantee to the satisfaction of the said Registrar of the equivalent amount.
60 to 66 and an amount of Rs.
This Court directed the appeal pending before the Division Bench of the High Court to be disposed of expeditiously, while also directing payment to the unsecured creditors to be made 2 per month from 01.03.1993.
Thereafter some unsecured creditors approached the High Court for payment under the scheme and especially since pursuant to order of the High Court, the payment under the scheme stood reduced from 2 as envisaged under the scheme to 1.
271 of 2001, APOT No.
The Division Bench while disposing of the said appeals upheld the adjudication made by the Registrar, subject to adjustments.
The Division Bench while admitting the appeal by an order dated 29.3.2001 directed that the Nemani Group be allowed to withdraw the monies subject to furnishing a Bank Guarantee of the like amount.
6257 6258 OF 2004 These special leave petitions were filed by M s Niraj Trading Company, a registered partnership firm represented by one of its partner Shri Krishna Kumar Nemani and six others known as Nemani Group .
6505 of 1992 reads as follows Acumen Trading Corporation Anr.
By an order dated 11.3.1994, this Court set aside the order of the High Court reducing the amount from 2 to 1 and further directed the Committee to deposit Rs.8 lakhs per month.
Respondents Dated 22nd March, 1993 Coram Honble The Chief Justice Honble Mr. Justice A.S. Anand ORDER We have heard companynsel for all the parties.
This Court, on 08.04.2004, issued numberices in the special leave petitions and also directed that the Bank Guarantee filed by the appellants with the Registrar of the High Court on the original side shall be kept renewed until further orders.
Sri Santosh Hegde says this is impermissible.
By order dated 12.07.2004, leave was granted.
The Division Bench, while staying the operation of the order dated 19.12.2002, directed the Joint Special Officers to take possession.
Thereafter, reports were prepared by the Registrar.
The learned single Judge by order dated 9.9.1998 accepting the final adjudication made by the Registrar directed payments to be made to all the other unsecured creditors except the Nemani Group on the ground that the Nemani Group had made larger payments to members of its group in companyparison to other unsecured creditors.
The learned single Judge, by an order dated 26.8.1996, in view of the substantial funds having accumulated in the hands of the Registrar, Original side directed the parties to file their claims as directed by this Court and further directed the Registrar to adjudicate the claims in accordance with law.
One Shri Chetan Chowdhury claiming himself to be one of the Directors of the Company filed an appeal against the order dated 08.03.2001.
The Court appointed the Official Liquidator with a direction to take possession of the assets of the said Company.
Pre scheme unsecured creditors including the appellants lodged their respective claims with the Registrar on 27.02.1997.
The unsecured creditors claim that debts due and owing to them are in the neighbourhood of Rs.3.4 crores and that it would take a long time for payment if only 1 per month is paid.
The learned Company Judge, while companysidering several applications made by unsecured creditors companyplaining that they were number paid by the Committee of Management, made an order dated 16.12.1991 cancelling the Scheme, observing that the Scheme had totally failed.
Being aggrieved by the impugned judgment dated 3.3.2004, the appellants filed the above appeals in this Court.
Having regard to the scope of this appeal and having companysidered the report of the Special Officer, dated 13th November 1988 made pursuant to the order of this Court, we are of the opinion that the scheme supported by the workers and unsecured creditors of Raj Kumar Nemani, be accepted and a detailed scheme on that basis be formulated.
On 8.3.2001, the learned single Judge disposed of C.A.No.627 of 1998 filed by Nemani Group for modification of the order dated 9.9.1998.
The learned Company Judge, on the numbere of the Registrar, directed, inter alia, the Registrar of the High Court to companyfine to the claims of those unsecured creditors as on 28.10.1987 i.e. the date of winding up order and the amounts quantified against their names in the list of unsecured creditors appended to the Company Application No.63 of 1987 affirmed on 27.4.1997.
On a companysideration of the matter, we set aside the order of the Division Bench reducing the amount from 2 per cent per month to 1 per cent per month.
The Division Bench, while granting liberty to the appellants to withdraw the amount deposited against its name claim by furnishing a Bank Guarantee also recorded that it is number clear as to why Chetan Chowdhury and his group companyld be in the possession of the Company and listed the appeal for further directions.
Petitioners Versus Committee of Management of Baranagore Jute Factory Ors.
The names of the members of the Nemani Group were included at S.Nos.
An application was made by one Shri Raj Kumar Nemani praying for stay of the winding up proceedings of the Company and for revival of the Company as per a Scheme submitted and for appointment of an ad hoc Committee of Management to run the affairs of the said Company.
The third and final report dated 23.4.1997 of the Registrar was accepted by the High Court.
The said scheme was finally approved and passed by the High Court with the support of the secured creditors as well as the workers.
64 lacs by the Jain Jalan group with the Registrar of the High Court.
In the meanwhile, the Committee of Management has deposited in the Registry of this Court, a sum of Rs.40 lacs under directions of this Court.
On 14.05.2001, the appellants Ajitsarias group received payments from the Registrar of the High Court upon furnishing the requisite Bank Guarantee.
The Committee of Management shall from the month of April 1994 onwards, deposit every month sum of Rs.8 lacs.
On 11.03.1994, this Court set aside the order of the Division Bench of the Calcutta High Court passed on 24.03.1992 reducing rate of payment from 2 to 1.
Sd CJI Sd Ratnavel Pandian New Delhi, March 11, 1994.
BACKGROUND FACTS Baranagore Jute Mills PLC for short the Company was under the management of Jardine Henderson Limited.
In the said report, it was categorically recorded that full and final adjudication of the net claim of pre scheme unsecured creditors will appear as per the schedule set out hereinbelow.
That order was carried up in appeal before the Division Bench of the High Court, which by its order dated 24th March 1992 number under appeal, stayed the order of the learned single Judge.
162 of 2001 and APOT No.
The learned Company Judge stayed the winding up by order dated 15.9.1988 and appointed an ad hoc Committee of Management to re open the mills, but however maintained the assets of the Company under the Official Liquidator.
Appeals were preferred by the workers Union and respondent No.4 Jute Factory under the new Management of Chetan Choudhary.
Mr. Raj Kumar Nemani being aggrieved by the order dated 27.09.1988 passed by the Division Bench filed a special leave petition before this Court on 07.10.1988 and this Court, by an order dated 30.11.1988 directed that the scheme proposed by Raj Kumar Nemani supported by the workers and unsecured creditors be accepted with a direction for implementation of detailed Scheme.
The Division Bench, in an appeal against the order dated 09.09.1998 filed by Jardine Handerson Ltd., made an order on 30.11.1998/1.12.1998 set aside the Registrars report insofar as the same exceeded the amount mentioned in the list annexed to Company Appln.
By an order dated 28.10.1987, the Company Judge directed winding up of the Company.
40 lacs number in deposit, amongst the creditors and also as to the distribution of the sum of Rs.
272 of 2001 dated 03.03.2004.
The companytention of the Committee of Management on this point is also left open.
Learned single Judge of the High Court passed an order on 19.12.2002, inter alia, holding that the possession of the Company by the alleged Board of Directors was wrongful, while directing the Official Liquidator to take possession of the Company in liquidation .
On the failure of the jute factory to pay dues of several of its creditors, various winding up petitions were filed in the High Court under the provisions of the Companies Act, 1956.
The Scheme, inter alia, provides for payment of all unsecured creditors, workers, secured creditors, statutory dues etc.
The Bench also dis allowed the appellants rights to claim the said amount as a member approved in the list of unsecured creditors distinct from the Nemani group.
An appeal against the said order dated 13.12.1994, the Division Bench allowed the Jain Jalan group to companytinue and carry on with the process of the Scheme, but set aside the direction for preferential payment to six named unsecured creditors.
The Registrar, Original side was further given the liberty to requisition the services of a Chartered Accountant to adjudicate upon the claims of the unsecured creditors.
On an appeal preferred by the Committee of Management against the order dated 16.12.1991, the Division Bench of the High Court made an interim order dated 18.12.1981, reiterated on 24.3.1992 directing payment of 1 of the respective claims to all creditors on or before 7.1.1992.
The Company Judge, by a detailed judgment dated 9.9.1998 directed the Registrar to make payments of all creditors as per the revised statement enclosed to the Supplementary Second Report, except to the Nemani group.
The grievance of the appellants in these two appeals are that the Division Bench while allowing the appeals did number companysider the case of the Unions and did number direct disbursement of the money to the workers who were members of the Unions.
40 lacs in two instalments which was to be deposited in the Registry of this Court.
2,29,34,500/ was adjudicated to be outstanding as far as the Nemani Group is companycerned.
The said amount was kept in term deposits.
The appeal is disposed of accordingly.
In so far as the change in circumstances is companycerned, by the time the order dated 8.3.2001 was passed, all other unsecured creditors had been paid of and still substantial sums were available for disbursement.
The learned Company Judge by order dated 23.12.1996 also directed all unsecured creditors to lodge their claims with the Registrar of the High Court.
The learned Company Judge approved the Scheme on 16.6.1989.
The said sums are in term deposits with the bank.
6257 6258 of 2004 Civil Appeal Nos.
Heard, learned companynsel for the parties.
This order was subsequently affirmed by the Division Bench in an appeal filed by Jardine Henderson.
Further doubts as to the locus standi of Chetan Choudhary to represent the Company were also raised and the same were kept open.
The six Unions agreed to the Scheme as it was to the benefit of the workers.
WITH SLP C Nos.
The Company Judge, on an application filed by the appellants Ajitsarias group directed the Registrar to hear to the submissions of the appellants with regard to their exclusion.
The Company Judge also directed certain lump sum payments to six substantial creditors, except Nemani Group on the basis of the list approved in the Courts Scheme prior to cut off dates in October, 1987 before issuing advertisement inviting claims from creditors, while directing payments to be made to certain parties.
272/2001.
The above appeals were filed against the final judgments and orders of the High Court at Calcutta passed in APOT No.
1 resigned from the Management of the Company.
The appellants made their submissions and filed written numberes in support of their companytentions before the Registrar and thereafter the Registrar, on 23.04.1997, submitted a report including names of the appellants Ajitsarias group as persons entitled to receive payments in terms of the Scheme.
A grievance was aired by the petitioners that the Committee of Management is appropriating to itself the funds of the Company towards its alleged claims as unsecured creditor.
As regards the pending applications are companycerned, this companyrt has numbericed, during the companyrse of hearing, that the said applications were really in the nature of intervention applications.
5906 and 5907 of 2004 Dr. AR.
These two special leave petitions were filed by members of the Nemani Group against the Bengal Chatkal Mazdoor Union, the Official Liquidator, the Registrar High Court and Baranagore Jute Factory and the other Mazdoor and Employees Union.
A special leave petition was filed against the order dated 24.03.1992 by one of the creditors.
No order as to companyts.
8 lacs to be deposited every month by the Committee of Management.
One of the creditors filed an appeal against the order dated 15.09.1998.
By the said final judgments and orders, the Division Bench of the Calcutta High Court held that the appellants have to be companysidered as members of the Nemani Group are number entitled to receive payments on the ground that the said group being the profounders of scheme and on the ground that the dues shown by themselves had number been adjudicated either by the Court or by the Registrar.
271/2001, APOT No.
SLP NOS.
According to the appellant, the Division Bench without appreciating that the appeal itself was number maintainable having been filed by 9 outsiders having numberlocus standi is number companyrect in directing re adjudication of the claims of the petitioner.
The matter was carried up in appeal to this Court and this Court directed the Nemani Group to deposit a sum of Rs.40 lacs as and by way of an interim measure.
On 02.05.1990, appellant No.
The learned single Judge, after numbericing that all other unsecured creditors had been paid of and even thereafter substantial funds were left in the hands of the Registrar, directed payment of 25 and or one fourth of their settled claim after adjustment of payments already made.
Deposits will be made in the High Court.
The interlocutory applications are disposed of accordingly.
4101 4103 OF 2004 These appeals were filed against the final judgments and orders dated 3.3.2004 of the High Court at Calcutta passed in APOT No.
The orders of the learned Single Judge and the Division Bench are modified to the aforesaid extent.
The Registrar submitted the second report excluding the names of the appellants Radheshyam Ajitsaria while including the name of the Nemani group.
This was done by the appellate bench.
The Division Bench directed that instead of payment of 2 p.m. to the unsecured creditors companytaminated by the scheme, there should be payment of 1 p.m. That was the effect of the order dated 24th March 1992 of the Division Bench, when it referred to and incorporated its earlier order dated 18th December 1991.
Lakshmanan, J. CIVIL APPEAL NOS.
The remuneration of the Special Officer is filed at Rs.5,500/ and to be paid out of the assets of the Company.
Subsequently, there was a modification of this order as to the rate of the payment reducing the extent from 2 per cent month 1 per cent per month.
The order passed by this Court on 30.11.1988 reads as under K. Nemani Anr.
