Dismissed

M/S. EVEReST Fincap Pvt. Ltd. v. Offcial Liquidatr High Cour Bomb, Being Liquidator of M/S Brdbury Mills Ltd. (I.L.) and 10 Ors.

Bombay HC15 Jun 2007WP/1318/2007

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging an order condoning delay (>226 days) by the DRAT. The Court found no error in the Tribunal's discretion, noted the Official Liquidator's unsatisfactory conduct without disclosing it further, and extended the stay for three weeks.

What did the court decide?

Writ Petition dismissed; stay order extended for a period of three weeks.

M/S. EVEReST Fincap Pvt. Ltd. Vs Offcial Liquidatr High… — Banking and Recovery | Bombay HC (2007)

¶1

: 1 :

¶2

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION

¶3

WRIT PETITION (L) NO.660 OF 2007

¶4

Everest Fincap Pvt. Ltd....Petitioner
V/s.
Official Liquidator of M/s.Bradbury .
Mills Ltd.(In Liqn) & Ors. ...Respondents

¶5

Ms.Rajani Iyer, Sr. Advocate with Ms.Sheetal S. Shah
i/b. Mehta & Girdharlal, for the Petitioner. .
Mr.B.B. Parekh, Advocate, for Respondent No.1. .
Mr.V.J. Shah i/b. Kanga & Co. for Respondent No.2. .
Mr.Devanshu Desai, Advocate, for Respondent No.7

¶6

CORAM : J.N. PATEL &
A.A. SAYED, JJ.
DATE : 15TH JUNE, 2007.

¶7

P.C. :

¶8

1.Heard.

¶9

2.The Petitioner is the purchaser of the
property from secured creditors of which the lead bank
is United Commercial Bank. The Petitioner has
approached this Court impugning the order dated 5.3.
2007 passed by the Debts Recovery Appellate Tribunal at
Mumbai in M.A. No.868 of 2005 in Misc. Appeal No.48
of 2006 which has been filed by the Official Liquidator
after seeking permission of the Company Judge in the
matter.

¶10

: 2 :

¶11

3.We have heard the learned Counsel for the
parties at length. The main contention raised on
behalf of the Petitioner was that as the secured
creditor has transferred the property in favour of the
Petitioner by negotiation which was not objected to by
Official Liquidator and the transaction has been
finally settled and the Official Liquidator did not
bother to challenge the impugned orders passed by the
Debts Recovery Tribunal dated 31.3.2005 and 29.11.2005
has preferred an Appeal after the delay of 226 days, it
was not proper on the part of Appellate Tribunal to
have condoned delay. The Debts Recovery Tribunal ought
not to have entertained the application.

¶12

4.It is submitted that the transaction was out
of negotiation with the secured creditors which was
accepted by them and in the given facts and
circumstances it was a fair offer, and therefore the
Official Liquidator at the first instance did not find
it objectionable and did not challenge the same. It is
subsequently after lapse of 226 days that the office of
the Official Liquidator suddenly found the settlement
as objectionable and has preferred this Appeal before
the Debts Recovery Appellate Tribunal. It should not
have been permitted by condoning the delay for which no

¶13

: 3 :

¶14

good and sufficient reason was placed before the
Hon’ble chairperson of the Appellate Tribunal

¶15

5.When this Petition was listed before us on the
last date, we were required to issue specific
directions to the Official Liquidator to file his
affidavit-in-reply as we found that the Official
Liquidator was not diligent in prosecuting the matter
before the Debts Recovery Tribunal and Debts Recovery
Appellate Tribunal.

¶16

6.As directed by us, the Official Liquidator has
tendered his affidavit. Copies of the same were
furnished to the Petitioner on 14th June, 2007. The
affidavit-in-reply is taken on record.

¶17

7.In so far as the impugned order condoning the
delay is concerned, it speaks for itself and we do not
find any error or illegality in the said order so as to
exercise our extra-ordinary jurisdiction to interfere
with discretion exercised by the Hon’ble chairperson of
the Appellate Tribunal.

¶18

8.In so far as the contentions raised before us

¶19

on the merits of the matter is concerned, in the
impugned order it has been clearly observed that the

¶20

: 4 :

¶21

parties would have opportunity to raise all their
contentions at the time of hearing, so it is not a case
where the Petitioner is left without a remedy.

¶22

9.In so far as question of condonation of delay
is concerned, it is a discretionary jurisdiction vested
with the Court or Tribunal and in the facts of the
present case the discretion exercised by the chair
person of the Debts Recovery Appellate Tribunal cannot
be said to be unjust or improper. Therefore, we
dismiss the Petition.

¶23

10.Before we part with the order, we may observe
that we have not taken into consideration merits of the
matter and have restricted ourselves to the impugned
order under challenge.

¶24

11.We find the conduct of the Official Liquidator
unsatisfactory in dealing with the matter. We refrain
from making any observations or adverse remarks in the
matter, as the office was held by different persons but
it is a matter of serious concern and deserves to be
enquired by the disciplinary authority of the Official
Liquidator i.e. Ministry of Corporate Affairs. We are
quite sure that the Ministry of Corporate Affairs would
look into the matter with all seriousness. With these

¶25

: 5 :

¶26

observations, the Writ Petition stands dismissed with
no order as to costs.

¶27

12.After dictating the order, the learned Counsel
for the Petitioner submitted that the stay granted by
the Debts Recovery Appellate Tribunal, Bombay, be
extended for a period of three weeks to enable the
Petitioner to seek legal advise and take appropriate
steps in the matter. In our view, it will be quite
fair on our part to grant time to the Petitioner as
sought for. Therefore, the order of stay passed by the
Debts Recovery Appellate Tribunal would continue for a
period of three weeks from today.

M/S. EVEReST Fincap Pvt. Ltd. v. Offcial Liquidatr High Cour Bomb, Being Liquidator of M/S Brdbury Mills Ltd. (I.L.) and 10 Ors.

Case brief

What is this about?

What did the court decide?

M/S. EVEReST Fincap Pvt. Ltd. v. Offcial Liquidatr High Cour Bomb, Being Liquidator of M/S Brdbury Mills Ltd. (I.L.) and 10 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Durvesh Amanulla Khan Vs Faria Durvesh Khan and Anr.

Rajashree Vijay Salunke Vs Vijay Dashrath Salunke (Deshmukh) and Ors.

dr aslam qureshi s/o abdul salam Vs muncipal corporation for greater mumbai and 2 Ors.

Mrs.Jayashree W/O Deepak Chavan Vs Deepak Mahadev Chavan and Anr.

Jayesh Pandya Vs Sukanya Holdings Pvt. Ltd. and Ors.

Jayesh H. Pandya Vs Sukanya Hoiding Pvt. Ltd. and Ors. and Court Receiver High Court, Mumbai