ICICI BANK LTD Vs. DUNLOP INDIA LTD

JUDGEMENT

(1.) BACKDROP:Dunlop India Ltd. was a Tyre manufacturing Company. It changed hands from time to time. Ultimately, the company came within the fold of Chabarias, the liquor baron. The company became sick and was referred to the Board of Industrial and Financial Reconstruction (hereinafter referred to as 'BIFR'). While the proceeding was pending before the BIFR, Ruias came in control of the company. Ruias claimed, they got control through purchase of controlling block of shares. Be that as it may, Ruias came in control of both the factories at Sahaganj in the State of West Bengal and Ambattur in the State of Tamil Nadu. Initially Ruias opened the Sahaganj factory and started manufacturing process at least, it was claimed so. Ambattur unit was however functioning. It now appears, during the period when matter was pending before the BIFR or so soon thereafter four valuable properties having an estimated value of Rs.2300 crores were surreptitiously transferred. The management wanted to avoid the restrictions of Section 22 of the Sick Industrial Companies Act, 1985, window dressed the accounts showing the net worth of the company positive and thus came out of the fold of BIFR. The management neither paid the creditors nor the workers. Both the units were shut down in course of time. The creditors started making application for winding up since 2008. There had been earlier winding up petitions that were kept in abeyance in view of pendency of the proceeding before the BIFR. For some time the company also enjoyed the benefit of relief undertaking under the State law. On a sum total of the situation, the company left no stone unturned keeping the creditors at bay. The workers were given false promises. In the hope that the factory would be reopened, the workers did not raise any serious issue pressing their long-standing dues. One of the creditors, Madura Coats Ltd. Ltd. filed application for appointment of provisional Arbitrator. By a judgment and order dated March 26, 2012 the learned Judge appointed Official Liquidator as the provisional liquidator and asked the provisional liquidator to take steps as against the fraudulent transfer of the immovable properties referred to above. The Division Bench termed it as Special Officer, however, did not disturb the process of inventory. The company ultimately faced the final hearing of the winding up proceeding. By judgment and order dated January 31, 2013 the learned Judge passed an order of winding up that became the subject matter of three appeals that we heard on the above mentioned dates. [ APPEALS:

(2.) Altogether three appeals were filed as observed herein before. M/s. Kanti Commercial Ltd. filed the first appeal claiming to be a creditor of the company opposing the winding up. Mr. Utpal Bose, learned counsel initially represented the said appellant. Subsequently, Mr. S.N. Mookherjee, learned senior counsel represented the said appellant. Mr. Mookherjee would contend, he had no nexus with Dunlop, he was a mere creditor, yet he did not want winding up as it would not enure to the benefit of the body of creditors.

(3.) The erstwhile company preferred the second appeal. Mr. Partha Sarathi Sengupta, learned senior counsel being assisted by Mr. Utpal Bose, learned counsel represented the appellant.