OD-21 CA No.555 of 2015 CP No.39 of 2009 IN THE HIGH COURT AT CALCUTTA Original Jurisdiction ORIGINAL SIDE M/S.S.S.T.MEDIA PRIVATE LIMITED (IN LIQN.) -ANDCALCUTTA BUSINESS CENTRE -VersusTHE OFFICIAL LIQUIDATOR, HIGH COURT, CALCUTTA Appearance: Mr.Tilok Bose, Sr.Adv.Mr.D.N.Sharma, Adv.Mr.Gaurav Khaitan, Adv.Mr.Shaunak Mitra, Adv...for the applicant.
Mr.Suvankar Nag, Adv.Mr.Suvankar Chakraborty, Adv...for the respondent Nos.2 & 3.
Ms.Ruma Sikdar, Adv...for the official liquidator.
BEFORE: The Hon'ble JUSTICE SANJIB BANERJEE Date : September 10, 2015.
The Court : The recalcitrance of the purchaser of the business of the company (in liquidation).obviously with extraneous clout, knows no bounds and is a clear affront to orders of Court and a veritable challenge to the rule of law itself.
Company SST Media Private Limited went into liquidation in May, 2009.
There was the usual fraudulent attempt to propound a scheme for the revival of the company, which is, generally in this determination, an euphemism for profiting from the assets of the company without paying its creditORS.Such endeavour was scotched by the company Court on January 8, 2010.
Upon the appeal from the order of the company Judge rejecting the scheme being dismissed, a special leave petition was filed by the propounders of the scheme – a company by the name of R P Techvision (India) Private Limited or persons in control thereof – by an order of January 17, 2011.
Though the order of rejection of the scheme was left untouched by the Supreme Court, it directed that the assets of the company (in liquidation) be sold as a going concern.
It is necessary to notice one paragraph of the Supreme Court order of January 17, 2011: “The amount spent post winding-up has been shown by the Court appointed Auditor in two Reports in the aggregate sum of Rs.19,78,68,334.84.
are dated 1 st respectively.
October, 2010 and 14 It is further th The Reports January, 2011, clarified that the advertisement for public auction shall indicate the actual amount spent by the petitioner herein during the post-winding up period as per the certificate of the Auditor appointed by the Court.
Needless to add that the sale will go for confirmation before the Company Court and at that time, it would be open to the petitioner herein to seek adjustment of the amount paid by it during the post-winding up period in case the petitioner becomes the highest bidder in the public auction.” The company (in liquidation) was in possession of about 10,000 sq.ft space in a building at 119, Park Street, Kolkata- 700 016.
The present application is by the exasperated owners of the space that had been let out to the company (in liquidation).complaining of the purchaser toying with the orders for delivering vacant possession of the property.
On such owners’ previous application under Sections 446, 456, 457 and 535 of the Companies Act, 1956 for, in effect, release of the said office space, an order was passed on May 14, 2013.
Such order, inter alia, provided for the official liquidator to issue advertisements for the sale of the business of the company as a going concern “by stipulating that any buyer of the business would have to vacate the premises 119, Park Street, Kolkata – 16 ...” The official liquidator was required to publish the advertisements for the sale by June 15, 2013.
The official liquidator was further directed to complete the formalities as to the conduct of the sale by July 31, 2013.
party to the proceedings and the R.P.Techvision was a order of May 14, 2013 specifically directed as follows: “If R P Techvision is the successful buyer they should find another place to do the same business after 31st May, 2014.
Any other buyer should do likewise.
Upto 31st May, 2014 or till the property becomes vacant, whichever is earlier the occupier of the property would pay to Calcutta Business Centre, occupation charges @ 6.14 lacs per month, through the Official Liquidator, as is being done now.
The Official Liquidator is directed to handover vacant possession of the property to Calcutta Business Centre by 15th June, 2014 or within 15 days of the property becoming vacant, whichever is earlier.
After expiry of 31st May, 2014 any occupier would be liable to be evicted from the premises by the Official Liquidator by use of police force.
I order accordingly.
The buyer would have to obtain the licence to operate from any other property after expiry of 31st May, 2014.” It does not appear that any immediate grievance was harboured by R.P.Techvision in respect of the order dated May 14, 2013, as R.P.Techvision unreservedly participated in the sale conducted in Court pursuant to the previous directions.
The sale was concluded by an order dated March 28, 2014.
Since the Supreme Court order of January 17, 2011 permitted R.P.Techvision to seek deduction of the costs that it may have incurred at the liquidation stage, R.P.Techvision made a bid of about Rs.42.61 crore to take over the business of the company (in liquidation) as a going concern, out of which it sought adjustment of a sum of Rs.42.46 crore approximately on account of the expenses allegedly made.
Thus, for an effective payment of about Rs.16 lakh that the official liquidator received, R.P.Techvision became entitled to all the assets of the company (in liquidation) with a right to continue its business as a going concern.
Since the other creditors of the company (in liquidation) have not complained on such account, it may not be necessary, at least at this stage, to dwell any further on such aspect of the matter.
It is of some significance and requires reiteration that R.P.Techvision was in one way or the other connected with the company (in liquidation) almost since the time the company went into liquidation.
It needs to be stressed that R.P.Techvision or persons in control thereof propounded a scheme to take over the assets of the company, it obtained an order from the Supreme Court for adjustment of the expenses that it apparently incurred, it was a party to the proceedings in which the order dated May 14, 2013 was passed and it purchased the business of the company (in liquidation) as a going concern, with all its assets, by the order dated March 28, 2014 pursuant to the sale notice published by the official liquidator on June 14, 2013 which specifically mentioned that it would be “mandatory for purchaser to vacate the aforementioned place of business of the company (in liquidation) before 31st May, 2014.” The applicant says that it was only on September 26, 2014 that Techvision a stay to petition resurrect a was affirmed dormant appeal purchaser from the order dated May 14, 2013.
on behalf of R.P.preferred by such It was in such stay petition that R.P.Techvision asserted, inter alia, that “the most vital equipment for media channel is embedded with the building on its roof, and cannot be removed inasmuch as removal there (sic, thereof) will put the channel affair (sic) causing thereby lapse of licence ...” R.P.Techvision also claimed that it had 300 workers and if the business was removed from the office at 119, Park Street, the livelihood of the 300 workers and their families would be jeopardised.
It requires repetition that by the time such stay petition was affirmed, the deadline for vacating the premises by May 31, 2014 had already expired.
under The applicant herein applied Section 634 of the Companies Act before the company Court seeking enforcement of the order by which the applicant was permitted to obtain vacant possession of its 10,000 sq.ft space at 119, Park Street.
On October 30, 2014, such application was disposed of upon prayers (a).(b) and (c) of the relevant summons being allowed.
The fiRs.prayer for was a direction on the official liquidator to make over vacant possession of the property to the applicant.
The second prayer was for the occupation charges in respect of the property to the tune of Rs.17.34 lakh till May 31, 2014 to be paid by the official liquidator to the applicant.
Prayer (c) of the summons was for a direction on the Officer-in-Charge assistance and of Park help to Street the police official station to liquidator render for all taking possession of the relevant property.
R.P.Techvision preferred an appeal from the order of October 30, 2014 and again sought to urge the difficulties in removing the sophisticated broadcasting equipment from the roof of the office premises.
Paragraph 31 of the stay petition in such appeal gave the impression that some alternative space had been attempted to be obtained for shifting the business from 119, Park Street.
By a judgment and order of December 16, 2014, the appeals preferred by R.P.Techvision against the orders dated May 14, 2013 (on the present applicant’s application in the nature of disclaimer) and October 30, 2014 (on the present applicant’s application in the nature of execution) were dismissed with costs.
It is necessary to notice at least one observation from the Division Bench judgment and the directions issued thereby: “...It is further interesting to note, while in the Memo of Appeal filed in the second appeal, the appellant states that they are looking for a new accommodation to carry on their business, still they strenuously urged the fiRs.appeal challenging the decision of the learned Company Judge for disclaimer of the said property.” ......“We direct the Official Liquidator to have the said property vacated by the appellant, if necessary with police help within January 31, 2015 and make over vacant possession of the said property to the respondent no.2 (the applicant herein) within February 07, 2014.
The appellant shall cause payment of the monthly occupation charges at the rate of Rs.6,14,000/- to the Official Liquidator for the period till the month of January, 2015.
All such monthly occupation arrear amount, charges, including the if any, shall be paid by the appellant to the Official Liquidator within January 07, 2015 and the Official Liquidator shall in turn pay the said sum to the respondent No.2.” In terms of the direction of the appellate Court, the official liquidator convened a meeting with the representatives of all concerned, including the applicant and R.P.Techvision, on January 15, 2015.
present at such Two representatives of R.P.Techvision were meeting.
The minutes record that the representatives of R.P.Techvision left the meeting before the conclusion thereof on some pretext without signing the minutes.
The minutes also record that Rana Bandopadhyay of R.P.Techvision assured the official liquidator not only to pay the outstanding occupation charges, but also to try and vacate the premises by January 29, 2015.
Since nothing was done by R.P.Techvision to vacate the premises in question by the last week of January, 2015, the official liquidator attempted to obtain possession thereof with police help on January 28, 2015.
The official liquidator’s letter of January 29, 2015 to the applicant and purchaser R.P.Techvision records that “employees of R P Techvision (India) Private Limited & some other unidentified person erected human barrier and raised stiff resistance blocking the access of the team.” The ‘team’ referred which to in the letter was the police force had accompanied the official liquidator in terms of the orders of May 14, 2013 and October 30, 2014 as affirmed by the Division Bench order of December 16, 2014.
The appellate order did not rest with dismissing the appeals and affirming the relevant ordeRs.but it issued a specific direction for the official liquidator to take police help for the purpose of obtaining possession of the property.
By or about January 29, 2015, a petition was filed under Article 136 of the Constitution before the Supreme Court, seeking leave to prefer an appeal from the order dated December 16, 2014.
Almost simultaneously, an application was sought to be filed before the relevant Division Bench of this Court by the employees of the television channel run by R.P.Techvision seeking, inter alia, extension of the time to vacate the property.
The applicant says that such application has not been sought to be moved yet, though it may have been effectively run over by the subsequent withdrawal of the special leave petition carried to the Supreme Court.
The special leave petition filed against the order of December 16, 2014 was withdrawn on July 20, 2015.
Thus, R.P.Techvision had no authority to continue to occupy the premises in question under any pretext in view of the finality of the previous ordeRs.particularly, the order dated December 16, 2014 passed by the appellate Court.
The applicant says that at or about the time that it sought to serve a copy of the present application on R.P.Techvision, an application affirmed on September 3, 2015 on behalf of R.P.Techvision was served on the applicant.
on behalf of R.P.Techvision that such It is submitted application is due to appear on September 15, 2015 and, as such, the present application should be adjourned till the returnable date of the application taken out by R.P.Techvision, so that the matter can be considered in the light of the material on which R.P.Techvision relies for its continued occupation of the premises in question.
The principal submission on behalf of R.P.Techvision is that since the teleport affixed to the terrace or roof of the building cannot be removed by virtue of the conditions of the licence granted in respect thereof, there is no question of the business being discontinued from the office at the said premises, particularly since R.P.Techvision runs a television news channel.
Certain other liquidator in grievances the inane are raised context of against the appropriate official documents not having been executed.
The applicant has referred to a judgment reported at 2014(11) SCC376(Sheela Jawarlal Nagori v.
Kantilal Baldota) and has relied on paragraph 14 thereof.
Nathmal The Supreme Court noticed that even orders passed on undertakings filed before Courts by occupants to vacate the concerned premises within a particular time were not adhered to.
There is an expression of anguish in the relevant paragraph at the flagrant disobedience of orders of High Courts requiring properties to be vacated by particular dates.
It is evident that R.P.Techvision had attempted the entire process of liquidation to be sent into a tailspin and adopted every kind of fraudulent trickery available to a litigant to perpetuate its occupation of the property.
Apart from the fact that it may have paid little or nothing for the business or assets that it acquired, it is evident that its attempt to a propound a scheme to run the business of a company that had gone into liquidation was, in itself, an attempt to resist the official liquidator from taking possession of the assets.
official liquidator would have sold the Ordinarily, the assets, disclaimed properties that the company (in liquidation) did not need, invited claims from the creditors of the company (in liquidation) and paid off the creditors in accordance with their priority.
Though the fraud attempted by R.P.Techvision propounding the scheme was seen through by this Court, the order of the Supreme Court for the assets of the company to be sold as a going concern, in effect, permitted R.P.Techvision to continue to retain control of the assets of the company (in liquidation) without any accountability till such time that it got title to the assets upon the sale of the business of the company (in liquidation) as a going concern being confirmed in its favour in March, 2014.
Never mind the paltry sum of Rs.16 lakh that came the liquidator’s official way, what is Techvision was aware long prior to the evident is that R.P.process of sale being initiated by the official liquidator that the purchaser of the business of the company property by May 31, 2014.
order of May 14, 2013.
liquidator’s sale (in liquidation) had to vacate the That direction was contained in the The direction was repeated in the official notice issued in June, 2013 and was not interfered with by the order confirming the sale passed on March 28, 2014.
It was only after the time for surrendering possession of the said property passed that R.P.Techvision purported to make any attempt to apply to the Court for its continued possession of the premises in question.
Indeed, it would be evident from the conduct of R.P.Techvision that it has not, till date, sought an extension of the time by indicating when it would vacate the premises.
As was observed by the Division Bench in the order of December 16, 2014 quoted above, R.P.Techvision sought to run with the hare and hunt with the hounds in running contrary cases in challenging the deadline fixed for vacating the property by the order dated May 14, 2013 and otherwise giving an impression in its appeal from the order dated October 30, 2014 that it would require some time to arrange its affairs before it could move on.
All that is sought to be urged on behalf of R.P.Techvision now was urged, or ought to have been urged, in couRs.of the appeals from the orders dated May 14, 2013 and October 30, 2014.
The bogey as to the teleport being affixed to the roof or as to the other equipment not being capable of removal from the present location was raised in couRs.of the appeals and were rejected in the appellate Court requiring R.P.Techvision to vacate the premises by January 31, 2015.
In the special leave petition from such order being withdrawn by R.P.Techvision, there is no ground that can be asserted by R.P.Techvision for its contumacious occupation of the property in question.
It needs also to be repeated that there are at least three orders of this Court – of May 14, 2013, October 30, 2014 and December 16, 2014 – which permit the official liquidator to obtain police assistance appropriate and assistance oblige for the the police official authorities liquidator to to render take possession of the property in question.
It is a matter of concern that the police authorities sometimes do not take orders of Court with the seriousness that they deserve.
Extraneous or political considerations cannot come into play when an order of Court obliges the police to carry out a particular act.
Since R.P.Techvision has no modicum of continue in occupation of any part of premises No.right to 119, Park Street, Kolkata-700 016, it is necessary that R.P.Techvision and its men and agents be forthwith stopped from entering the premises in question or carrying on any activities thereat.
The official liquidator and the applicant will cause copies of this order to be served on the Officer-in-Charge of Park Street police station as expeditiously as possible.
Upon the Officer-in-Charge of Park Street police station (or any person deputising for such officer) receiving a copy of this order from either the official liquidator or the applicant herein (Calcutta Business Centre).the Officerin-Charge will, within an hour, ensure that such order is brought to the notice of the Deputy Commissioner (South) of Kolkata Police and the Commissioner of Kolkata Police, inter alia, by drawing the attention of such senior officials to the website of this Court where the order may be viewed if the physical copy thereof cannot immediately be forwarded.
It will, thereupon, be the responsibility of the Commissioner and of the Deputy Commissioner (South) and the Officer-in-Charge of the Park Street police station, jointly and severally, to ensure that R.P.Techvision, its employees, supporteRs.agents and well-wishers are removed from the 10,000 sq.ft space on the ground floor of premises No.119, Park Street, Kolkata-700 016 by 4 pm on September 15, 2015.
In terms of the appellate order of December 16, 2014, R.P.Techvision Rs.6,14,000/- remains per month liable till to the pay end occupation of January, charges 2015.
of Such direction contemplated that the premises would be vacated by such time.
It may have been beyond the imagination of the appellate Court that an order of the highest Court of the State would not be carried out or that the police would not give adequate assistance for the implementation thereof.
It is reported by the official liquidator that the occupation charges from the month of April, 2014 have not been tendered by R.P.Techvision to the official liquidator.
As a consequence of such conduct, R.P.Techvision will not be entitled to remove any asset or equipment from the property in question that may remain thereat and the police authorities, particularly, the Commissioner of Police, will ensure that R.P.Techvision or its men or agents do not remove any equipment from the premises in question.
All belongings, assets, that movable remain in the or fixed, property other now than will be personal retained thereat for the moment and till the possession is unhesitatingly surrendered, charges.
attached for the realisation of the occupation The Commissioner of Police will file a report confirming the compliance of this order by the time the matter appears next on September 17, 2015.
R.P.Techvision seeks a stay of operation of this order.
Since not even a sentence to justify the prayer for stay is made out, there is no question of staying the operation of this order and allowing the contumacious occupation of the property by the recalcitrant purchaser.
Urgent certified website copies of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(SANJIB BANERJEE, J.) /sg.
A/s.