AI Structured Summary
Not yet generated for this judgment
Judgment
This special appeal seeks to challenge order dated 09.02.2018 passed by the learned Single Judge dismissing S.B. Company Application No. 38/2015
filed by the appellant in S.B. Company Petition No. 1/2003.
Mr. Ratnakar Banerjee, learned counsel for the appellant submitted that learned Single Judge has erred in law in dismissing application of the appellant
on the ground of principle of res-judicata holding that the appellant-applicant earlier preferred an application under Section 446 of the Companies Act,
1956 (for short ‘the Act’) before this Court in the year 2005, which was decided by the Single Bench of this Court vide order dated
15.03.2007. In that order, the facts pertaining to the decree and order of Calcutta High Court in execution petition followed by auction of the
property were considered for exclusion of the property in question from the liquidation. The appellant-applicant made a prayer for leave of the
Court to give effect to auction of the property and for execution of Conveyance Deed. Learned Single Judge has then in the impugned order
proceeded to observe that the aforesaid order dated 15.03.2007 was challenged by way of special appeal before the Division Bench of this Court,
which was dismissed. Thereafter SLP filed before the Supreme Court, was too dismissed. It was therefore held that the application would be
barred by principle of res-judicata.Â
Learned counsel submitted that the principle of res- judicata would apply only with regard to other part of Plot No. 19B ad-measuring 8148.90 sq.
metres, which was a leasehold land, with regard to which Application No. 60/2011 was filed. Present matter arise out of the Application No.
38/2015, pertaining to another part of Plot No. B19 ad-measuring 5437.50 sq. metres which was freehold land with regard to which no such
application was ever filed by the appellant. Learned counsel therefore submitted that the matter should be remanded back to the learned Single
Judge especially when the learned Single Judge is already seized of the review application filed by the Official Liquidator, whose application being S.
B. Company Application No. 12/2014 was also dismissed by the same impugned order.Â
Mr. Kersi J. Mehta, learned counsel appearing on behalf of the respondent-Official Liquidator submitted that the learned Single Judge has deferred
hearing of the review application filed by the Official Liquidator on account of pendency of present appeal. It is submitted that only prayer that was
made by the Official Liquidator therein was to allow him to take possession of land ad-measuring 5437.50 sq. metres as it has already taken
possession of other parcel of the land ad-measuring 8148.90 sq. metres.Â
Learned counsel for the appellant has taken us through the application filed by the appellant before the learned Single Judge as also the previous order
dated 15.03.2007 passed by the learned Single Judge. Perusal of the aforesaid order indicates that in the opening para, learned Single Judge has
taken note of the details of the property, “19B, Old Industrial Area, Alwarâ€, as the land, which was sought to be excluded from the list of the
properties of M/s. ACE Laboratories Ltd. (in Liquidation). Perusal of the application filed by the appellant indicates that in para 12, reference to the
very same Plot No. 19B, Old Industrial Area, Alwar was made, which was allegedly sold to one Shree Shakun Agro Products for valuable
consideration. Â It was also stated in para 11 of the application that in view of confirmation of sale by the Calcutta High Court and issuance of sale
certificate, the appellant-applicant became owner of the said property and an application being S.B. Company Application No. 4 of 2006 was filed
before this Court seeking deletion of the said leasehold property from the list of properties of the company under liquidation. This Court vide order
dated 15.03.2007 held that the applicant could not claim title of the said property as it had not been registered in its name on the date of passing of the
order of winding up and receiver could not have got the sale registered in the name of the applicant without leave of the Court, but in the last line of
para 11 of the application, it is also mentioned that the said application did not pertain to freehold property ad-measuring 5437.50 sq. metres. The
application otherwise filed by the Official Liquidator was in two parts, one with regard to land ad-measuring 8148.90 sq. metres, which was already in
their possession and other with regard to land ad-measuring 5437.50 sq. metres, possession of which was sought, which application has also been
rejected.Â
It appears that neither of the parties clarified the aforesaid aspect of the matter to the learned Single Judge, who proceeded to decide the application
on the assumption that order dated 15.03.2007 passed by this Court pertained to the entire Plot No. 19B, which as per the parties consisted of two
parts. As per appellant herein, the aforesaid application was filed with regard to one part which was ad-measurng 8148.90 sq. metres and did not
deal with the other part of the plot ad-measuring 5437.50 sq. metres.Â
Since the learned Single Judge was not properly apprised of this factual aspect of the matter, we do not deem it appropriate to interfere with the
impugned order. We, however, set the appellant at liberty to approach the learned Single Judge seeking review of the aforesaid order on the ground
of aforesaid factual error. The learned Single Judge, may in his discretion, examine such application along with review application filed by the
Official Liquidator whether or not it constitute an error apparent on the face of the record so as to justify review of the entire order, which was passed
with regard to parcel of land ad-measuring 8148.90 sq. metres.Â
Special appeal is accordingly disposed of with the aforementioned liberty to the appellant.Â
Stay Application No. 1818/2018 also stands disposed of. Â