ORDER
SHEET IN THE HIGH COURT AT CALCUTTA ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL SIDE CA No.906 of 2010 With CP No.2 of 1987 TA125of 2013 CA No.26 of 2014 CA No.309 of 2013 CA No.321 of 2013 CA No.324 of 2014 CA No.358 of 2013 CA No.388 of 2013 CA No.39 of 2013 CA No.513 of 2013 CA No.59 of 2013 CA No.99 of 2014 CA No.901 of 2010 CA No.577 of 2010 CA No.641 of 2009 CA No.126 of 2005 CA No.740 of 2005 CA No.302 of 2005 CA No.303 of 2005 CA No.587 of 2010 CA No.370of 2009 CA No.957 of 2010 CC111of 2015 RE: THE BARANAGORE JUTE FACTORY PLC AND BARANAGORE JUTE FACTORY PLC MAZDOOR SANGH (BMs.Versus DAMODAR PRASAD BHATTAR & ORS.BEFORE: The Hon'ble JUSTICE GIRISH CHANDRA GUPTA Date : 26th June, 2015.
Mr.S.N.Mitra, Sr.Adv., Mr.D.N.
Sharma, Adv.and Mr.S.Ganguly, Mr.S.Sarkar, Advs.for Yashdeep Trexim PVT.LTD.MRS.Manju Agarwal with Mr.Bajrang Menot, Adv.for unsecured creditors Mr.Jishnu Chowdhury, Adv.with Mr.Rajesh Updhyay, Adv.and Mr.Arka Banerjee, Adv.for the Union Mr.S.K.Mal, Adv.with Mr.Atanu Roychowdhury, Adv.and Mr.Dibanath Dey, Adv.… Baranagore Jute Factory PVT.LTD.Workers’ & Employees’ Union.
Mr.S.N.
Mookherji, Sr.Adv.with Mr.Ratnanko Banerjee, Sr.Adv.Mr.Rudrajit Sarkar, Adv.Mr.Anirudha Agarwalla, Adv.and Ms.Priyanka Lahiri, Adv.for Baranagore Jute Factory Mr.Aanirban Roy, Adv.with Mr.Prasanta Naskar, Adv.Mr.Sounak Bhatttacharya, Adv.and Mr.Soumabho Ghosh, Adv.… for Namokar Vinimay Mr.P.C.
Sen, Sr.Adv.with Mr.Debasish Kundu, Sr.Adv.Mr.Ankur Jain, Adv.and Mr.Joydeb Ghorai, Adv.…for Baranagar Jute Factory Plc.
Mazdoor Sangh.
Mr.S.K.
Kapoor, Sr.Adv.Mr.Reetobroto Mitra, Adv.with Mr.S.Choudhury, Adv..for Daksh Vyapaar P.
LTD.Mr.D.K.
Singh, Adv.… for Official Liquidator Mr.S.Ghosh and Mr.A.Agarwalla, Adv….for the Company The Court : It is a contempt application alleging deliberate violation of the order dated 23rd February, 2011.
The question arose whether the company, in liquidation, which is presently under the management of the alleged contemnors should be permitted to receive the amount payable by the National Highway Authority on account of compensation.
The application being CA906of 2010 was for an order preventing the present management of the company, in liquidation, from receiving any amount payable by the National Highway Authority.
After hearing the parties, this court rejected the contentions advanced by the learned counsel on behalf of the alleged contemnors to allow the company to receive the money and to keep the same in a fixed deposit.
This Court held that the money could not be entrusted with the present management of the company, in liquidation, who are the alleged contemnors in the present application.
Therefore, the following order was passed:“ In that view of the matter, National Highway Authority of India is restrained compensation to the from company making in any payment liquidation except on account by way of of an account payee cheque to the Registrar, Original Side.
The Registrar, Original Side upon receipt of such payment shall keep the same in a short term fixed deposit subject to further order of Court with the SBI Main Branch.
Upon receipt of the money, he shall keep the parties informed about it.” Pursuant to the aforesaid order, the National Highway Authority issued a cheque of Rs.94.16 crores approximately in favour of the Registrar, Original Side of this Court.
The National Highway Authority had issued the aforesaid cheque after deducting a sum of Rs.10,55,60,331/- on account of tax deducted at source.
Such payment appears to have been received by the Registrar, Original Side of this Court in or about November, 2012.
The fixed deposit was made by the Registrar, Original Side on 9the November, 2012, that is to say, during the financial year 2012-13 corresponding to assessment year 2013-14.
In the return filed on behalf of the company for the assessment year 2013-14, a claim for refund was made on the basis of the aforesaid deposit made by the National Highway Authority on account of the tax deducted at source as would appear from page 101 of the application.
It appears that the claim for refund was met by the Income Tax Authority by issuing a cheque on 13th June, 2014 as would appear from page 102 of the application.
There is, as such, clear evidence of the fact that the alleged contemnors received the refund in violation of the order dated 23rd February, 2011.
Assuming that receipt of the cheque on account of refund of income tax was in the usual couRs.of business, there can be no gainsaying that the cheque should not have been encashed without leave of Court.
From Annexure-E to the application appearing at page 102, it appears that a cheque dated 13th June, 2014 was received on account of refund and has also been encashed.
Such encashment of the cheque on account of refund which has its origin in the amount paid by the National Highway Authority was in the teeth of the order dated 23rd February, 2011.
I am, therefore, prima facie of the opinion that there has been a deliberate violation of the order passed by this court.
It appears from the return appearing at page 101 that a sum of Rs.34,31,807/- was payable on account of tax by the company.
After deducting the aforesaid sum from the amount of Rs.10,55,60,331/-, the balance sum of Rs.10,21,28,520/- was claimed by way of refund.
The liability on account of income tax is payable by the present management from their own resource and for that any part of the money received from the National Highway Authority could not be used.
Therefore, the alleged contemnORS.managing the affairs of the company, in liquidation, appear to have appropriated the aforesaid sum of Rs.10,55,60,331/which was deposited by way of tax deducted at source with the Income Tax Department by the National Highway Authority.
For the aforesaid reasons, issue Rule against the alleged contemnor Nos.1 to 6.
Returnable six weeks hence.
Since the company, in liquidation, through the machination of the alleged contemnORS.has been enriched by the aforesaid sum and in order to preserve the aforesaid sum the alleged contemnors are restrained from operating the bank account/accounts of the company without setting aside the aforesaid sum of Rs.10,55,60,331/-.
Re : CA No.384 of 2015 Parties are directed to exchange affidavits.
Affidavit-in-opposition be filed within three weeks from date; reply, if any, within two weeks thereafter.
Matter be listed after six weeks.
(GIRISH CHANDRA GUPTA, J.) sm