Case: Oil &amp; Natural Gas Corporation Vs. Axis Bank Limited &amp; Others

pass the order on merits.17. We find that, in so far as Appeal No. 497 of 2018 is concerned which challenges the order dated 26th April, 2018, it deserves to be dismissed on the short ground of the conduct of the Appellant ONGC. The said Company is a State owned company and therefore, a State within the meaning of Article 12 of the Constitution of India. It cannot approbate and reprobate. The perusal of the record would reveal that the learned Company Judge and the Official Liquidator have spent their considerable time so that all the parties agree to a workable arrangement which would sufficiently safeguard the interest of ONGC as well as the vendors. The orders passed by the learned Company Judge would reveal, that the said outside agency was also acceptable to the ONGC. Not only that, the amount as was found to be due and payable was also not disputed by the ONGC. The only dispute that was sought to be raised before the learned Company Judge was that the amount, that would be required to be paid by ONGC would be towards the advance payment and as such ONGC claimed that they would be entitled to charge interest for the amount of advance so paid. The said contention was rejected by the learned Company Judge in his order dated 26th April, 2018. The perusal of the material on record would further reveal that, thereafter there has been a series of communication between the Mathews and the ONGC. The perusal of the record would reveal, that the said Mathews was serious in complying with the directions issued by the learned Company Judge in his order dated 26th April, 2018. However, it appears that since for a period of six months the ONGC had not made any payment as per the directions issued by this Court, he filed the Company Application (L) No. 598 of 2018, wherein the learned Company Judge passed the order on 29th October, 2018 directing to deposit an amount of Rs.30 Crores.18. It appears that at that point of time the ONGC woke up from deep slumber and decided to challenge the order dated 29th October, 2018 as well as the order dated 26th April, 2018. We fail to appreciate the submission made by Shri Kamdar that after the passing of the order dated 26th April, 2018, the Respondent ONGC found that the amount as directed was not due and payable. The perusal of the order dated 26th April, 2018 would reveal that as a matter of fact ONGC had broadly accepted the arrangement as is directed by the learned Company Judge not only that but in pursuance to the order dated 26th April, 2018, the ONGC has also acted upon the same as is evident from the correspondence exchanged between Mathews and the ONGC. Even prior to order dated 26th April, 2018, the matter was heard on various dates. The liquidator has also conducted various meetings and at no point of time, the ONGC raised an objection to the outstanding dues payable by to the Company in liquidation. Though it is the contention of ONGC that in September, 2018, it found that no dues were payable by it to the Company in liquidation nothing was done by it to point out this to the learned Company Judge. It is for the first time now that the ONGC is trying to wake up from deep slumber. We are therefore of the considered view that it is not open now to the Appellant ONGC, to say that what is reflected in the order dated 26th April, 2018 passed by the learned Company Judge is not correct. We are therefore of the considered view, that the Respondent ONGC has challenged the order dated 26th April, 2018, after a long period, only because by subsequent order dated 29th October, 2018, it has been directed to deposit the amount of Rs.30 Crores.19. It is a different matter that we are inclined to stay the order dated 29th October, 2018, since no reasons are given by the learned Company Judge, as to why he has enhanced the amount from Rs.12.66 Crores to 30 Crores.20. In pursuance to the oral submission made by Mr. Jain, learned counsel for the Respondent, Mr. Rajendra Prasad Mada, Managing Partner of the Respondent No.1 Mathews has filed undertaking to this Court. It will be relevant to refer to the said Affidavit-cum-Undertaking.1. I say that by an order dated 26th April, 2018 passed in Company Application No.261 of 2018 in Company Petition No. 576 of 2014, Respondent No.1 was appointed as Project Management Consultant for completion of the balance project under the contract between Respondent No.2 Company and Appellant. 2. By the said order Appellant was directed to pay an amount of Rs.12.66 Crores towards 75% of outstanding dues of the vendors. This Honble Court further directed that the said amount shall be paid to Respondent No.1 and who in turn will be to the vendors mentioned in the list. 3. I, the Managing Partner of Mathew Associates Hook-up and Weld Services hereby undertakes to this Honble Court that:- (a) The entire balance work shall be completed within a period of six months from date of realisation of the aforesaid amount in favour of Respondent No.1. (b) In the event of any delay in completing the work within a period of six months from the date of realisation of the aforesaid amount in favour of Respondent No.1, Respondent No.1 shall deposit the aforesaid amount in this Honble Court. 4. The Appellants will co-ordinate with Respondent No.1 in completion of the balance project under the contract between Respondent No.2 Company and the Appellant. 21. We are of the considered view that the said undertaking filed by Shri Mada on behalf of Mathews sufficiently takes care of interest of ONGC as well as other stake holders. In that view of the matter, we do not find any merit in the Appeal challenging order dated 26th April, 2018.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]17. We find that, in so far as Appeal No. 497 of 2018 is concerned which challenges the order dated 26th April, 2018, it deserves to be dismissed on the short ground of the conduct of the Appellant ONGC. The said Company is a State owned company and therefore, a State within the meaning of Article 12 of the Constitution of India. It cannot approbate and reprobate. The perusal of the record would reveal that the learned Company Judge and the Official Liquidator have spent their considerable time so that all the parties agree to a workable arrangement which would sufficiently safeguard the interest of ONGC as well as the vendors. The orders passed by the learned Company Judge would reveal, that the said outside agency was also acceptable to the ONGC. Not only that, the amount as was found to be due and payable was also not disputed by the ONGC. The only dispute that was sought to be raised before the learned Company Judge was that the amount, that would be required to be paid by ONGC would be towards the advance payment and as such ONGC claimed that they would be entitled to charge interest for the amount of advance so paid. The said contention was rejected by the learned Company Judge in his order dated 26th April, 2018. The perusal of the material on record would further reveal that, thereafter there has been a series of communication between the Mathews and the ONGC. The perusal of the record would reveal, that the said Mathews was serious in complying with the directions issued by the learned Company Judge in his order dated 26th April, 2018. However, it appears that since for a period of six months the ONGC had not made any payment as per the directions issued by this Court, he filed the Company Application (L) No. 598 of 2018, wherein the learned Company Judge passed the order on 29th October, 2018 directing to deposit an amount of Rs.30fail to appreciate the submission made by Shri Kamdar that after the passing of the order dated 26th April, 2018, the RespondentONGC found that the amount as directed was not due and payable. The perusal of the order dated 26th April, 2018 would reveal that as a matter of fact ONGC had broadly accepted the arrangement as is directed by the learned Company Judge not only that but in pursuance to the order dated 26th April, 2018, the ONGC has also acted upon the same as is evident from the correspondence exchanged between Mathews and the ONGC. Even prior to order dated 26th April, 2018, the matter was heard on various dates. The liquidator has also conducted various meetings and at no point of time, the ONGC raised an objection to the outstanding dues payable by to the Company in liquidation. Though it is the contention of ONGC that in September, 2018, it found that no dues were payable by it to the Company in liquidation nothing was done by it to point out this to the learned Company Judge. It is for the first time now that the ONGC is trying to wake up from deep slumber. We are therefore of the considered view that it is not open now to the AppellantONGC, to say that what is reflected in the order dated 26th April, 2018 passed by the learned Company Judge is not correct. We are therefore of the considered view, that the Respondent ONGC has challenged the order dated 26th April, 2018, after a long period, only because by subsequent order dated 29th October, 2018, it has been directed to deposit the amount of Rs.30 Crores.We are of the considered view that the said undertaking filed by Shri Mada on behalf of Mathews sufficiently takes care of interest of ONGC as well as other stake holders. In that view of the matter, we do not find any merit in the Appeal challenging order dated 26th April, 2018.