9911796707
TMI Blog2013 (4) TMI 254X X X X Extracts X X X X X X X X Extracts X X X X ..... t that land admeasuring 13759 sq. mtr. of Survey No.295, for which bid of the applicant was accepted, is not available for sale, this Hon'ble Court may be pleased to set aside the sale as confirmed under order dtd.18/7/11 and be further pleased to direct the Official Liquidator to refund the amount paid by the applicant along with interest at the appropriate rate as deemed fit by the Hon'ble Court. (B) That this Hon'ble Court may be pleased to direct the Respondent No.2 GIDC to clarify and state that the aforesaid Lot No. VA admeasuring approx 13759 sq. mt. Of land is unencumbered, and that the company in liquidation is the lessee with regard to the said land admeasuring approx 13759 sq. mt. (BB) That this Hon'ble Court may be pleased to initiate proper inquiry into the manner in which the office of the Official Liquidator auctioned the property in question, without ascertaining the correct status of the land in question. (BBB) That this Hon'ble Court may be pleased to direct the Official Liquidator to formulate proper procedure to ensure that in future, before the property is to be auctioned, proper inquiry/ investigation is carried out with regard to auctioned property, so tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is further stated in the affidavit that after making the payment as above, the applicant contacted respondent No. 2-Gujarat Industrial Development Corporation (GIDC) to obtain the relevant documents, namely, the Lease Deed in favour of the Company in liquidation. However, respondent No.2 did not provide these documents to the applicant. The applicant, therefore, made efforts to gather the relevant revenue record and came into possession of Village Form No.7/12, wherein the name of IPCL has been bracketed in the Column of second charge, and, the name of Reliance Industries has been inserted. As the applicant was not informed regarding the second charge on the land in question, nor the effect of such an entry, it addressed a letter dated 29.09.2011, to the Official Liquidator, requesting for a copy of the Lease Deed in favour of the Company in liquidation, as well as a copy of the full set of title deeds/documents relating to Lot No. VA. The Official Liquidator did not respond to the request of the applicant and did not forward the title deeds/ documents relating to Lot No. VA. In these circumstances, the applicant has taken out the present Judge's Summons, making the prayers reprodu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ault place on record entire details of the steps and precautions taken before disposing the land in question by way of auction sale by virtue of sale confirmation order dated 18/7/2011. The respondent GIDC also shall take steps to place on record entire history from the Revenue record as well as its record, so far as land in question are concerned and clarified the details regarding title of ownership of land bearing survey no. 295, out of which, the land in question has been sold to the applicant. Having regard to the facts and circumstances of the case, request made by learned advocate for the applicant that OL may be directed to EMR the amount received from applicant society and maintain it separately. Under this circumstances, OL is directed to EMR the said amount separately and if find necessary to deposit such amount in short term fixed deposit of period of forty five days or sixty days as may be considered appropriately in Nationalized Bank. S. O. to 19/12/2011." 8. Pursuant thereto, GIDC filed its reply dated 19.12.2011. It is, inter alia, stated as below: "3. I submit that in light of the said prayers as prayed in the application the Hon'ble Court was pleased to issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Official Liquidator deputed his representative to the Office of the Registrar of Companies, Gujarat Ahmedabad for taking inspection of records of the subject company to find out assets and properties, liabilities, addresses of Registered office of the company and Secured Creditors. That, the Official Liquidator most respectfully submits that dates on which possession of the Assets and Properties were taken over by the Official Liquidator are as under:- Sr. No. Particulars of Assets Date of taking over possession 01 Calico Dom 04.06.1998 02 Land Building structure at Chembur, Mumbai 12.10.1998 03 Fiber Division, situated at Petroleum Zone, Baroda 20.05.1998 04 Plant, Machineries and all other movables including land and building structure situated at Jamalpur, Opp. Flower Market, Ahmedabad 14 & 15.05.1998 05 Anik Chembure, Mumbai 08.06.1998 In this connection, the Official Liquidator most respectfully submits that at the time of taking over possession of the land of the company (In Liqn.) measurement of the land in question was not carried out. Copy of the minutes recorded on 20.05.1998 at the time of taki ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rein below: "(14) That, the copy of draft amendment prepared by the applicant has been served to the Official liquidator, who has purchased the property in question. In this connection, the Official Liquidator most respectfully submits that at the time of auctioning the property the Official Liquidator has solely relied upon the valuation reports submitted by the GITCO and Mr. Bakul Desai, Valuer and on the Title Search Report given by Advocate Shri Nilesh Trivedi. The Official Liquidator submits that at no point of time there was any doubt about the measurement or title of the property in question as nothing was on record regarding acquisition of admeasuring 8,000 Sq. Mtrs. Of land by Reliance Industries Ltd. from IPCL, who had acquired the land from GIDC. The Official Liquidator humbly submits that the purchaser had surveyed the land in question and also inspected the same physically before bidding for the same. In this connection, it is further respectfully submits that as per ratio decided by the Hon'ble Supreme Court of India in Civil Appeal No.405 of 1986 in United Bank of India v. Official Liquidator & Others, [1994] 1 Supreme Court Cases 575, when sale of the assets and pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fide impression that the measurement as mentioned in the valuation report were that of the property of the company and so the same were mentioned in the advertisement of sale pursuant to the order of the Hon'ble High Court. (4) The Official Liquidator therefore submits that it was only after the sale was confirmed and the auction purchasers went for measurement and found out that there was discrepancy in the measurement of the property and that almost 8000 Sq. Mtrs. Out of admeasuring 13,759 Sq. Mtrs. Did not belong to the company (In Liqn.) and only when the facts was brought to the notice of the Hon'ble High Court by way of the present application that the Official Liquidator realized that there was some kind of mistake or inadvertent in carrying out proper measurement of the company's property which was put to sale. (5) The Official Liquidator very humbly submits that in view of the discrepancy in actual measurement of the property in question, the auction purchaser has certainly not got what the advertisement mentioned. The Official Liquidator submits that it is true that the auction purchaser bid for the property described in the advertisement and the sale was confirmed in h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he land admeasuring 8000 sq mtr was allotted to IPCL way back in 1988 so far as land bearing survey no.295p is concerned. Over and above IPCL was allotted in all 52108 sq mtr for various survey numbers including the land in question in block no: 10 and 11. Accordingly the said land in question does not fall in ambit of Calico Mills Ltd (in liquidation)." Thus GIDC has also taken a categorical stand that the land in question does not fall in the ambit of the Company in liquidation. 17. The Official Liquidator has, thereafter, filed one more Report dated 15.06.2012. Nothing of substance regarding the issue in question has been stated in the said Report. 18. Lastly, the Official Liquidator has filed a Report dated 09.07.2012. Along with the Report, the Official Liquidator has annexed a copy of the order "dated 18.01.2012 of this Court (Coram: K.M. Thaker, J.) in Official Liquidator's Report No. 124 of 2011 in the matter of "OL of Hamco Mining & Smelting Ltd. (In Liquidation) v. Canara Bank ", wherein the Court has issued certain directions. The relevant extract of the order reads thus: "4. The Court is at pains to mention that this is not the first case in which such defects are n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned the task to carry out the work of valuation of the property, he should be asked to independently take measurement of the property in question and also independently examine the title and ownership and also mention description / status of the property in question e.g. whether it is encumbered or whether there are encroachment or whether it is completely vacant or not or whether there is any attachment Notice and such other aspects. The details regarding property in the municipal / revenue record should be examined by the valuer and while suggesting the valuation, the valuer also should take into account jantri value as well as the sale instances for at least 5 year and those details must be reflected in the report. (8) Detailed and exact inventory of the properties / assets (movable / immovable) and the record which are taken in possession and which are found to be in the premises of the company, should be drawn. (9) If any statutory authority or any tribunal or Court has attached the property then the said details also must be reflected in the report of possession and the formalities in such cases should be complied so as to protect the interests of workers and cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s submitted by secured creditors of the company such as proof of debt/ statement of charge etc; (11) Details of security agency employed by the OL to safeguard the properties, the rates at which work is awarded and payment made, if any; (12) The contract with security agency must contain a clause imposing liability to pay damages in case of theft and to supply the list of persons employed from time to time; (13) Number of petitions, company applications, OLRs filed by the office of OL, secured creditors or workers along with orders passed thereon; (14) Any correspondence / complaints received from any party including workers and secured creditors regarding the company in liquidation; (15) Details of any property sold, proceeds realized, how invested by the OL and details of disbursement with corresponding orders of the Hon'ble High Court; (16) Details of litigation by workers either in Civil Courts or labour Courts and whether the OL has appeared in any matters and also the matters pending in DRT and whether appearance caused or not," 19. In the above background and context, this Court has heard Mr. Manish R. Bhatt, learned Senior Counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdination between the office of the Official Liquidator and the GIDC. Had the Official Liquidator coordinated with the GIDC, it would have come to light that land comprising Survey No.295/P admeasuring 8000 square metres has been allotted to IPCL (now Reliance Industries Limited) vide communication dated 20.06.1988. 25. Having heard the learned counsel for the respective parties and upon perusal of the material on record, what emerges is a dismal and shocking picture of the careless and casual approach on the part of the office of the Official Liquidator in a serious matter of auction of the land of the Company in liquidation, pursuant to orders of this Court. What is stated to be "inadvertence", "mistake", "oversight" by the Official Liquidator can more appropriately be described as a dereliction of the fiduciary duty that the Official Liquidator is bound to perform, under the directions of this Court. The fact of the matter is that the land that was advertised, auctioned and purchased by the applicant - Society under orders of this Court is not available on the spot, to the extent of the measurement advertised as a substantial part of it had been allotted to IPCL (now Reliance I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Official Liquidator, in respect of the property in question. In Paragraph-2 of the Report dated 16.01.2012, it has been stated that due to "inadvertence" and "oversight", the Official Liquidator has not conducted an in-depth and detailed search of the property in question with regard to the ownership of the Company and its assets, nor had the land measured. In paragraph-3 thereof, it has been stated that the Official Liquidator was "under bona fide impression" that the measurements as mentioned in the Valuation Report were that of the property of the Company in liquidation and same as mentioned in the advertisement of sale. 28. It cannot be understood by this Court how such glaring lapses can be casually explained away as "inadvertence" and "oversight". It is the bounden duty of the Official Liquidator to ensure and carry out a proper, detailed investigation regarding the properties in question, especially pertaining to the location of the immovable properties, survey numbers and the accurate measurements. It also appears from the material on record that no detailed inventory of the properties of the Company in liquidation, of which possession was taken over, was drawn at the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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