NIYATI KETAN SHAH THROUGH HER POWER OF ATTORNEY KETAN SHAH Vs. OFFICIAL LIQUIDATOR OF CORE HEALTHCARE LTD. (IN LIQUIDATION)

JUDGEMENT

(1.) THIS Judges' Summons have been taken out by the applicant seeking permission of this Court to proceed further and continue with Special Civil Suit No. 423/2005 filed by the applicant against the Company (in liquidation), which is pending before the City Civil Court, Ahmedabad. An affidavit in support of the Judges' Summons has been filed by Mr.Ketan Shah, Power of Attorney of MRs. Niyati Ketan Shah, the sole Proprietor of N.K. TradeRs. It is stated that the applicant had advanced financial facility to the Company (in liquidation) to the tune of Rs. 4.00 Crores (Approx.). However, the Company (in liquidation) failed to repay the said amount, therefore, an Agreement was executed between the parties, whereunder it was agreed that the Company would sell certain products through the applicant firm as its Distributor/Agent. Under the said Agreement, the applicant was supposed to receive a certain amount as commission, to be credited towards outstanding amount of credit facility that was to be repaid by the Company (in liquidation) to the applicant. It is stated that the Company (in liquidation) failed to comply with, or act in furtherance of, the terms and conditions of the Agreement. The applicant, therefore, filed Special Civil Suit No. 423/2005 in the City Civil Court, Ahmedabad, inter -alia, praying for a decree for an amount of Rs. 4,64,14,165.30Ps. with interest at the rate of 2.5%, to be awarded from the date of filing of the suit till realization.

(2.) IT is further submitted that the Company (in liquidation) filed an affidavit/purshis in the pending suit, inter -alia, stating that under a Scheme of Amalgamation, it has merged with Nirma Limited and, accordingly, all the rights and liabilities of the Company are taken over by Nirma Limited. Relying upon the said affidavit/purshis, the applicant preferred an application for substituting Nirma Limited in place of Core Heathcare Limited as defendant in the said suit, which was allowed by the Trial Court vide order dated 10.08.2011. The said order came to be challenged by Nirma Limited before this Court in Civil Revision Application No. 283/2011, inter -alia, contending that it has neither taken over the entire Company, and nor has the whole Company got merged with it. It was contended that under the Scheme, Nirma Limited had taken over only Sachana unit of Core Heathcare Limited, whereas the residual undertaking still remains as "Core Heathcare Limited". After hearing the parties, this Court, by order dated 13.03.2012, modified the order passed by the City Civil Court directing the applicant to join Nirma Limited as defendant No. 2, while retaining Core Healthcare Limited as defendant No. 1. In the meanwhile, Core Healthcare Limited went into liquidation by order dated 24.06.2009 passed by this Court in Company Petition No. 189/2008. It is stated that in the above facts and circumstances, since Core Healthcare Limited has been wound up by this Court vide order dated 24.06.2009 and the Official Liquidator attached to this Court has been appointed as the Official Liquidator of the Company (in liquidation), the applicant is required to obtain permission for proceeding further with the above -mentioned Civil Suit.

(3.) IN view of the fact that Core Healthcare Limited (the Company in liquidation), has been would up by this Court vide order dated 24.06.2009 and as Special Civil Suit No. 423/2005 filed by the applicant against the Company (in liquidation) is pending before the City Civil Court, Ahmedabad, for recovery of an amount of Rs. 4,64,14,165.30Ps. with interest, the interest of justice would demand that permission, as prayed for by the applicant, is required to be granted, as contemplated under Section - of the Companies Act, 1956.