TMI Blog2022 (3) TMI 513X X X X Extracts X X X X X X X X Extracts X X X X ..... ircumstances be seen as a positive assertion to decline to continue the suit. Rule 9 under Order 22, clearly allows the liquidator and/or the company to apply for setting aside of the abatement or the dismissal of the suit under conditions provided in the said rule. In the present case there has been no order of the Court seeking an explanation from the liquidator or any order of Court seeking a security for the costs incurred by the defendants. Furthermore, it is very apparent that the liquidator has been acting in the suit with reference to the movable suit property in question and has taken all necessary steps therein - it is crystal clear that the liquidator is fighting tooth and nail with regard to this litigation and a mere delay in making an application for substituting his name in the records of the suit would not in any manner lead to an abatement of the suit. Application seeking abatement of the suit is dismissed. - I.A. G.A. NO. 7 & 8 of 2021 in C.S. NO. 77 of 2013, And I.A. G.A. NO. 8 of 2022 in C.S. NO. 77 of 2013 - - - Dated:- 8-3-2022 - SHEKHAR B. SARAF, J. For the Plaintiff/Petitioner For the Defendant/Respondent No. 1 For the Defendant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i Steels Ltd and in the appeals arising therefrom diverse orders have been passed from time to time both by the Interlocutory Court as well as by the Division Benches of this Hon'ble Court. b. The Court passed an interlocutory order dated July 16, 2014 in G.A. No. 898 of 2013 and held that the defendant No.2/applicant has a claim on the goods weighing about 10,000 MTs but the original plaintiff being the said Dankuni Steels Ltd could take delivery of the 11,074.09 MTs of the goods in question from the defendant No.1 only upon securing the value of the said goods by a bank guarantee for a sum of INR 21 Crores in favour of and to the satisfaction of the Registrar, Original Side. Further liberty was given to the applicant/defendant No.2 to apply for increasing the value of the Bank Guarantee if there was any delay in disposal of the suit. c. In an appeal being APO No. 293 of 2014 preferred by the original plaintiff being the said Dankuni Steels Ltd from the said order, a Division Bench of this Hon'ble Court by its order dated 29th July, 2015 held that in view of the vagaries of the market it would be prudent to sell the 10,000 MTs of Met Coke to secure the claim of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and January 13, 2021 the learned Advocate for the plaintiff company in liquidation informed the Special Officer that his client has gone into liquidation and therefore the present plaintiff company will not be able to share any costs since they do not have the funds to do so. The liquidator was present and took part in the said meeting and supported the submission made by the learned Advocate appearing for the plaintiff company in liquidation. i. Thereafter, in the meeting held on September 17, 2021 the Advocate appearing on behalf of the Company in Liquidation submitted that the Special Officer does not have any jurisdiction or power to decide on the issue whether he can proceed with the sale process in view of the fact that the plaintiff company has been ordered to go into liquidation. In the above meeting the Special Officer had decided to proceed with the sale and for such purpose had fixed a meeting on October 5, 2021 on virtual platform for discussing the sale notice and the terms and conditions for sale. j. On October 5, 2021, the representative of the defendant no. 2 had pointed out to the Special Officer that no terms and conditions of sale were forwarded to it a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no direction from the Court and no notice was given to the liquidator with regard to the abatement of the same. He has further submitted that the Court has not directed for any security and, therefore, the question of any security does not arise in the present case. Mr. Bose has relied on Khunni Lal v- Rameshwar and another reported in AIR 1922 All 361 and Velji Sivji and another (supra) to support his argument. 5. At the very outset, I would like to state that the present lis is required to be decided primarily on first principles and there is no requirement whatsoever to rely on judgments/precedents to support the view that is being taken by me. Since the matter relates to abatement of a suit wherein a corporate entity is the plaintiff, it becomes necessary to state the provision that controls such abatement. Accordingly, Order 22 Rule 8 is delineated below: 8. When plaintiff's insolvency bars suit.-( 1) The insolvency of a plaintiff in any suit which the assignee or receiver might maintain for the benefit of his creditors, shall not cause the suit to abate, unless such assignee or receiver declines to continue the suit or (unless for any special reason the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Leathem [Coram: Earl of Halsbury L.C., Lord Macnaghten, Lord Shand, Lord Brampton, Lord Robertson, and Lord Lindley.] reported in 1901 AC 495 to buttress the point raised by me above. Relevant paragraph of the judgement is presented below: ........that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is tha a case is only an authority for what it actually decides. ........... In light of the same, I do not intend to distinguish each one of them separately. Suffice it to say, that these judgments have not assisted this Court in the present lis as they are either distinguishable on law or on facts or on both. 7. With regard to the interpretation of Order 22 Rule 8 one may look into paragraph 3 of Velji Shivji (supra) wherein Justice Chagla has exquisitely described the procedure for abatement in the case of a company that goes into insolvency. The relevant extract is provided below: 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e suit would not in any manner lead to an abatement of the suit. In fact, in my view the liquidator has never stopped acting in the suit but has continued diligently to act in the suit for the protection of the goods in the suit which the plaintiff claims to have title on. The very fact of the presence of the liquidator in the meetings held by the Receiver indicate a constant endeavour to protect the interest of the plaintiff in this case. 10. Hence, G.A. No. 7 of 2021 in C.S. No. 77 of 2013 seeking abatement of the suit is dismissed and G.A. No. 8 of 2021 in C.S. No. 77 of 2013 seeking amendment of the plaint to bring the liquidator on record is allowed. Apropos the dismissal of G.A. 7 of 2021, the Receiver is directed to proceed with the sale of the ten thousand metric tons of coke in accordance with the guidelines and directions provided for in the order dated December 14, 2017 passed by the Hon ble Supreme Court of India. 11. With the above directions these applications are disposed of. 12. I would like to thank Counsel appearing for both the parties for having assiduously assisted me in this matter. 13. Urgent Photostat certified copy of this order, if applied fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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