1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 2235 OF 2003 NOTICE OF MOTION NO. 2235 OF 2003 NOTICE OF MOTION NO. 2235 OF 2003 IN SUIT NO.2332 of 2003 SUIT NO.2332 of 2003 SUIT NO.2332 of 2003 ICICI Bank Limited ... Plaintiff Versus Maheshwari Mills Limited & Ors. Defendants Mr. Chetan Kapadia with Mr. Sachin Chandarana and Mr. Swayam Chopda i/b. Manilal Kher Ambalal & Co.Advocates for the Plaintiff. Mr. R.K.Gandhi for Defendant No.1. Mr. G.G.Ketkar, 1st Assistant to Court Receiver present. CORAM: S.C.DHARMADHIKARI,J. CORAM: S.C.DHARMADHIKARI,J. CORAM: S.C.DHARMADHIKARI,J. DATE: 5th February, 2009. DATE: 5th February, 2009. DATE: 5th February, 2009. P.C. P.C. P.C. 1. On 13th January, 2009, I had recorded the statement of Mr. Gandhi, learned Advocate appearing for the Official Liquidator attached to the Gujarat High Court and thereafter adjourned the matter so as to 2 enable him to take instructions. 2. Mr. Gandhi has placed on record a letter dated 27th January, 2009 addressed to him by the Official Liquidator, High Court of Gujarat (taken on record and marked "X"). 3. As far as the property described at page 30 of the plaint in the present suit, the Liquidator states as under :- "Regarding order dated 13.01.2009 passed by the Hon’ble Bombay High Court, I have to state that the properties described at page-30 of the plaint are the land bearing survey numbers 306 (1 to 5),303, 304/5, 305,306, 307/A and 307/B at Mouje Dariapur, whereas the description of the properties sold by this office is land bearing survey numbers 323 part, 324 and 327A part and 327B part, apart from factory building and plant & machineries. Therefore, it is clear that the land at Survey numbers as mentioned on page-30 of the plaint are not sold by this office. In this connection, it is however, to be clarified that the revenue survey numbers of the land are converted into City survey numbers and final plot 3 No.110 in T.P. Scheme No.14 has been reconstituted comprising various City Survey Numbers. The corresponding city survey numbers for the land of revenue survey numbers sold by this office are C.S. numbers 2980, 2981. The original survey No. 306 forming part of properties mentioned on page-30 of the plaint is included in final plot no.110 and its new city survey number are 2991 and 3023 over which there is already construction of industrial sheds. Further out of the final plot No.110 there is a deduction of 2199 sq. mtrs. of land for the road of T.P. Scheme. Therefore the land described on page-30 of the plaint cannot be sold unless the corresponding city survey numbers for the revenue survey numbers are ascertained and actual measurement of land as available on the site with proper map of its boundaries and markings of location and possession details are obtained. Therefore, it would be necessary for the Court Receiver to get this exercise done before moving the Hon’ble High Court of Gujarat seeking leave U/s. 446 of the Companies Act, 1956 for sale of the said properties. You are therefore requested to please make submissions before the Hon’ble Bombay High Court accordingly." 4 Thus, this property is yet to be sold. There are difficulties pointed out by the Official Liquidator and he has stated that upon same being removed, this property can be disposed of. 4. Mr. Kapadia appearing for the plaintiff states that Court Receiver has been appointed by this Court. The Court Receiver could not take possession as the plaintiff and the Court Receiver were under an erroneous belief that the Official Liquidator has taken possession of this property. Now, with this clarification, and considering that the plaintiff has obtained leave under Section 446 of the Companies Act to proceed with the present suit, the Court Receiver may be directed to carry out measurement and survey with the assistance of the local authority in Gujarat and thereafter dispose of the property with leave and sanction of the Gujarat High Court. 5. In my view, since the Court Receiver has not taken possession of the property and further the defendant No.1 being wound up and is under liquidation so also the assets and property is of the Company which is in 5 liquidation, it would be desirable and in the interest of justice that the Official Liquidator carries out the aforesaid steps after obtaining such orders and directions from the Gujarat High Court as are necessary in law and thereafter take possession of the subject property. The Official Liquidator can also seek further directions to dispose of this property. 6. In case the property is disposed of, the Official Liquidator not to disburse the sale proceeds until further orders and directions of this Court. The plaintiff can also seek leave of the Gujarat High Court and place before the said High Court the proposals received and other documents with regard to the subject property. Needless to state that this order in no case shall be construed as this Court in any manner directing disposal of the property of the company in liquidation. The order is passed to facilitate the Official Liquidator and the plaintiff so also the debenture trustees/others concerned with them to dispose of the property after obtaining necessary directions from the Gujarat High Court,of course, the Receiver will be a party to the proceedings in that behalf. Notice of Motion is disposed of. No costs. 6 (S.C.DHARMADHIKARI,J.) (S.C.DHARMADHIKARI,J.) (S.C.DHARMADHIKARI,J.)