KIRTIVAN D. KOTIAN Vs. MOHAN SINGH AND ORS.

JUDGEMENT

(1.) This is an application filed by one Dr. Kirtivan D. Kotian seeking for being impleaded in Co. P. 56/2008 contending inter alia that he along with his brother and father owned not less than 95% of shares in the company(in liquidation) and were in control of its affairs at an undisputed point of time. It is also stated that during the year 2006 company (in liquidation) had borrowed loan of Rs. 9 Crores for expanding its business and substantial portion of shares held by applicant and family members are said to have been taken by zero cost with an understanding that entire assets and liabilities of company are taken over by Sri. S.N. Ladhani, resident of Bengaluru and therefore shareholding was diluted to less than 2% and remaining shares were held by Sri. Ladhani and his nominees. In addition, it is stated that State Bank of India had extended an additional loan of Rs. 2 Crores against security of company's assets during the year 2007 and when Sri. S.N. Ladhani and his nominees proposed to manage the company bank accepted their guarantee and thereby there is 'act of novation' and as such guarantee extended by the applicant had stood dissolved. On these grounds amongst other grounds as mentioned in detail in the affidavit supporting the application, applicant has sought for being impleaded.

(2.) It requires to be noticed at this juncture itself that applicant herein had made similar attempt earlier by filing C.A. 327/2013 and same came to be dismissed by this court vide order dated 25.04.2013 and it has been noticed by Coordinate Bench of this court that applicant herein is neither necessary nor proper party and held that applicant having spelt out in unmistakable terms that he is not a shareholder of company (in liquidation) he would not be a necessary party and accordingly application came to be dismissed on 25.04.2013. It also requires to be noticed by this court that said application has been dismissed along with two other applications filed by very same applicant which was for recalling the order dated 18.12.2008 passed in Co. P. 56/2008 directing winding up of the company (in liquidation) and to condone the delay in filing said application. Those two applications undisputedly came to be dismissed by co -ordinate Bench of this court on 25.04.2013. These orders were carried in appeal by applicants in O.S.A. 33/2013 and O.S.A. 44/2013. Division Bench of this court, after considering rival contentions has noticed that only interest of applicant is to the extent that he is a guarantor of loan taken by company (in liquidation) from State Bank of India and he has no shareholding in the company and he had voluntarily exited from the company in the year 2006 itself when he transferred his shareholding in favour of Sri. S.N. Ladhani and his family members and as such he cannot have any say in the matter. It has been further held by Division Bench that when a pointed question was posed to the learned counsel appearing for appellant therein (who incidentally happens to be same counsel in the present application) to the effect as to right of appellant to seek revival of company (not being a shareholder) was not answered to arrive at a conclusion that appellant therein i.e., applicant herein has not been able to explain as to why after having woken up from his slumber in the year 2013 i.e., nearly five years after passing of the winding up order he should be heard, that too at the stage of directions being issued for the sale of property and as such Division Bench declined to interfere with the order dismissing the applications. Thus, the claim of the applicant had become final and undisputedly this has not been pursued by the applicant before Apex Court.

(3.) However, it is stated by Sri. Ajesh Kumar, learned counsel that a review petition has been filed against order passed in OSA 33/2013 and OSA 44/2013 and he would fairly concede that there is no stay of order dated 25.02.2015. His submission is placed on record.