RASIKLAL S MARDIA Vs. ICICI BANK LIMITED

JUDGEMENT

(1.) ICICI Bank Limited filed Suit No. 434 of 2003 against Maradi Chemicals Limited (hereinafter referred to as "the Company") for recovery of their dues in their capacity as Debenture Trustees. In the said Suit, Notice of Motion No. 364 of 2003 was taken out for interim reliefs including for appointment of a Court Receiver. The Court vide its order dated 13-8-2004 allowed the Notice of Motion and appointed the Court Receiver' with certain directions. In furtherance to the orders of the Court, the Court Receiver took possession of the property on 2-3-2005. After some time, proceedings against the Company were taken out and it was ordered to be wound up by the Gujarat High Court visits order dated 3-8-2005. There were complaints of pilferage of the movable properties of the Company and the Court Receiver of this Court held a meeting at the site on 27-4-2007 and it was noticed that certain materials were missing and even an inventory was prepared. There were large machineries, components and other items which took a considerable time in preparation of inventor)'. The Court Receiver filed different reports from time to time before this Court. The properties were directed to be sold and two different inventory reports dated 9-11-2005 and 7-7-2006 were prepared. The present Appellant, who claims to be a Director of the Company, filed an application for attending the meetings and proceedings of the Court Receiver. On 18-12-2007, the Court Receiver fixed an appointment at the site for verification and to comply with the directions contained in the order dated 29-11-2007. The Valuer wrote a letter to the Court Receiver informing him of his readiness to carry out the inventory subject to such a list of missing items being supplied to him prior to the visit. The Court Receiver referred the said letter to the Appellant. Finally, after this representative visited the suit site, the Court Receiver submitted his Report No. 172 of 2008 to the Court. In the Report, the Court Receiver gave various details and prayed before the Court and sought directions in regard to the following:

(2.) The Appellant also filed his reply affidavit on 27-5-2008. When the Report and the affidavit came up for hearing, the Court passed the order dated 19-6-2008 primarily dealing with the Report of the Court Receiver and also observed that a specific objection was being taken that the applicant is an outsider as a past Director of the Company in liquidation and cannot be heard. However, the Court, in the interest of justice and to see prima facie that there is indeed theft of some movable genuinely informed the Court, he was heard. The Court Receiver had also written a letter dated 27-3-2008 to the Police Station at Surendranagar, Gujarat to obtain particulars of the alleged theft in furtherance to the FIR alleged to have been registered with the Police Station. The Court also noticed that the earlier orders of the Court particularly that of 13-8-2004 had not been complied in entirety and the property need to be sold and directed "the Court Receiver shall forthwith proceed with the work of sale of all the units of the 1st Defendant-Company". The applicant-Appellant claims that he is aggrieved by the order dated 19-6-2008 and has filed the present Appeal against that order.

(3.) We may notice at the very outset that the very locus standi of the Appellant has been rightly questioned in the present Appeal. The Appellant is neither a party to the Suit nor has been ordered to be impleaded as a party in the proceedings before the Court Receiver. The sale of the property had been directed by the Court vide its order dated 19-6-2008 has not been complied with. For whatever reason it may be, but the fact is that the properties in question have not been put to sale as yet. despite various directions of the Court and now the allegations after allegations are being made that the movable property of the Company is missing and/or there has been a theft. It is not in dispute before us that at one point of time a complete inventory was prepared with the help of the Valuer. Whatever are the circumstances, it is in nobody's interest that the property of the Company should not be protected. We are of the considered view that the Appellant has no substantive right in any of the proceedings and as such cannot delay the proceedings any further. If the property and the plaint and machinery is not sold at the earliest, it will jeopardise the interest not only of the Bank but even of the Company as they would stand to lose in terms of value as the plant and machinery is bound to depreciate with the passage of time. As has been noticed by the learned Single Judge that the Court Receiver should look into the question of theft, but, however, it failed short of directing reconfirming of the inventory. Firstly, there were no applications filed by the Appellant which has been dealt with or disposed of by the impugned order. It is only the Receiver's application in which he voluntarily filed an affidavit which was looked into by the Court in order to examine the prima facie case as well as to protect the interest of the Company as well as the Bank.