M/S WRITERS AND PUBLISHER PVT. LTD. versus A. K. MISHRA, OFFICIAL LIQUIDATOR THE COOPERATIVE STORES LTD. SUPER BAZAR
[2018] 5 S.C.R. 775, Supreme Court of India, 2018
Outcome: Disposed off
Segment: Ratio
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M/S WRITERS AND PUBLISHER PVT. LTD.
v.
A K MISHRA, OFFICIAL LIQUIDATOR
THE COOPERATIVE STORES LTD. SUPER BAZAR
(Contempt Petition (C) Nos.1665-1666 of 2017 )
IN
(I.A. Nos. 102-103 of 2017)
IN
(Special Leave Petition (C) Nos. 8398-8399 of 2005)
       MAY 17, 2018
[DIPAK MISRA, CJI,  A.M. KHANWILKAR AND
DR. D.Y. CHANDRACHUD, JJ.]
Multi-State Cooperative Societies Act, 2000 – Process of
revival of Super Bazar, monitored by Supreme Court – Offer made
by petitioner-WPL accepted – Official Liquidator (OL) directed to
take steps to revive Super Bazar – WPL infused funds for revival of
Super Bazar inter alia through subscriptions towards share capital
– However, the process of revival could not take place – WPL was
directed to be refunded “entire investment” made by it during the
period when the arrangement subsisted, with interest @ 6% p.a.–
In terms of the direction, Comptroller and Auditor General of India
(CAG) submitted its report – WPL filed objections thereto – Also
instituted contempt proceedings against OL – Held: In terms of the
direction, WPL is entitled to interest at 6% on the entire investment
made by it – Investment brought in by way of share capital, did fall
within the above mandate – It is part of the overall investment by
WPL – Once WPL was allowed a return on its investment, the profits
which it earned were required to be deducted – This part of the
direction does not contemplate that losses which accrued over the
period were to be adjusted –
Further, loss accrued not as a result of
the business as such but due to payments which were required to be
made to the workmen in pursuance of the directions issued by
Supreme Court – Report submitted by CAG needs to be corrected
on the said counts – OL has set out the steps taken in pursuance of
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the order of Supreme Court for valuation and sale of the properties
of Super Bazar – Petition for contempt as against the OL, not
entertained.
The process of revival of Super Bazar was being monitored
by Supreme Court. Offer made by the petitioner-WPL was
accepted. The Official Liquidator (OL) was directed to take steps
to revive Super Bazar. The bid submitted by WPL stipulated that
the infusion of funds for revival of Super Bazar was inter alia
through subscriptions towards share capital. The process of
revival could not take place and it was directed that WPL be
refunded “entire investment” made by it during the period when
the arrangement subsisted, with interest at 6% p.a. In terms of
the direction to effectuate the refund, Comptroller and Auditor
General of India (CAG) verified the income and expenditure
incurred by WPL, the profits earned from the Super Bazar
establishment. CAG submitted its report to which WPL filed
objections. Contempt petition also filed by WPL against OL.
Disposing of the contempt petitions, the Court
HELD: 1.1 WPL in terms of the direction in order dated
29 March 2016 is entitled to interest at 6 per cent on the entire
investment made by it. Investment brought in by way of share
capital, did fall within the said mandate. It is part of the overall
investment by WPL. The order of Supreme Court envisaged an
exit for WPL. The order directed that there be a deduction of
profits made, since WPL
was being compensated by way of interest
on its investment. Consequently, it would be impermissible to
deny WPL the benefit of interest on its entire investment inclusive
of share capital. [Para 12] [782-G-H]
1.2  The adjustment of losses incurred in Super Bazar and
their deduction from the amount to be refunded to WPL is contrary
to the mandate of the order dated 29 March 2016. CAG was only
required to deduct the profits which had accrued in favour of WPL
while determining the amount refundable to it. Once WPL was
allowed a return on its investment, the profits which it earned
were required to be deducted. This part of the direction does not
contemplate that losses which accrued over the period were to
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be adjusted. The loss accrued not as a result of the business as
such but due to payments which were required to be made to the
workmen in pursuance of the directions issued by this Court.
The report submitted by CAG needs to be corrected on the said
counts, namely;
(i)  Denial of interest at 6 per cent on the entire investment
of WPL including  by way of share capital; and
(ii) Adjustment of losses;  as explained earlier.  [Paras 13,
14] [783-A, C, D-E]
1.3 The OL has also set out the steps which have been
taken in pursuance of the order of Supreme Court for valuation
and sale of the properties of Super Bazar. Having regard to the
contents of the said affidavit, the petition for Contempt as against
the OL is not being entertained.  [Para 15] [783-G-H]
CIVIL APPELLATE JURISDICTION : Contempt Petition (C)
Nos. 1665-1666 of 2017 in I.A. Nos. 102-103 of 2017 in Special Leave
Petition (Civil) Nos. 8398-8399 of 2005.
From the Judgment and Order dated 07.05.2008 of the  Hon’ble
Court in Special Leave Petition (C) Nos. 8398-8399 of 2005
WITH
M.A. Nos. 1394-1395 of 2017 in I.A. Nos.102-103 of 2017 in
S.L.P. (C) Nos.8398-8399 of 2005, M.A. Nos. 677-678 of 2018 in
S.L.P. Nos. 8398-8399 of 2005 & I.A. No.3664 of 2018
 WITH
Contempt Petition (Civil) Nos.866-867 of 2018 in S.L.P. (C)
Nos. 8398-8399 of 2005
 WITH
M.A. Nos....D. Nos.64493, 64494 and 16545 of  2018.
C. A. Sundaram, Sunil Gupta, Sr. Advs., Hemant Singh, Biju
Mattam, Shourya Malhotra, Ankur Mody, Ms.
Siddhi Padia, Santosh
Sharma (for Praveen Swarup), R. P. Shukla, Ms. Upasna Shukla, Vijay
K. Jain, S. Wasim A. Qadri, Jubair Ahmad Khan, Zaid Ali, Tamim Qadri,
Saeed Qadri, Syed Faizan Ali (for Lakshmi Raman Singh), Ms. Sunita
Sharma, Ms. Rekha Pandey, Raj Bahadur, Ms. Swati Ghildiyal
(for Mrs. Anil Katiyar), R. K. Kapoor, Ms. Rekha Giri, Ms. Kheyali
Sarkar, Reyat Kapoor, Ms. Reetu Sharma for Anis Ahmed Khan,
M/s. Parekh & Co., Advs. appearing for the parties.
M/S WRITERS AND PUBLISHER PVT LTD. v. A K MISHRA,
OFFICIAL LIQUIDATOR
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The Order of the Court was passed by
DR. D. Y. CHANDRACHUD, J. 1. The revival of Super Bazar
was being monitored by this Court over several years. By an order dated
7 May 2008, this Court noted that three bidders were identified by the
Evaluation Committee; among them being M/s Writers and Publisher
Pvt Ltd (WPL). This Court recorded that all the Unions representing
the workmen had agreed that the dues of the workers as on 31 December
2007 were Rs. 54.31 crores.
2. By an order dated 26 February 2009, this Court accepted the
report of the Evaluation Committee which had recommended acceptance
of the offer made by WPL. Accordingly, the Official Liquidator (OL)
and the Central Registrar, Multi State Cooperative Societies were directed
to take steps to revive Super Bazar. In a further order dated 13 August
2010, this Court observed thus :
“(ii) In terms of our order dated 7th May, 2008, an amount of
Rs.54.31 crores, being arrears of wages upto 31st December,
2007, was directed to be disbursed by the highest bidder. Rs.55
crores stands deposited by the highest bidder. The sum of Rs.20
crores out of Rs.55 crores which lies with the Registry of the
Supreme Court, will be disbursed by the Official Liquidator and
the nominee of the Central Registrar Co-operative Societies in
the presence of one Union representative of each Union within
four weeks from today. The representative of the highest bidder
will also remain present in
the said meeting. It is made clear that
the workers will sign the receipt of payment, which will be adjusted
towards the arrears of Rs.54.31 crores.
(iii) As far as the balance amount is concerned, we are directing
the highest bidder to file an affidavit containing an Undertaking
that within a period of eight weeks, from the date of constitution
of the Board of Directors after the elections, the balance amount
will be disbursed to the workers. This will cover arrears of wages
up to 31st December, 2007.”
3. Subsequently, in September 2015, an IA was filed on behalf of
the Union of India stating that neither WPL nor the management of
Super Bazar had submitted a revival plan before the Central Registrar
of Cooperative Societies. As a result, the Super Bazar could not be
revived in accordance with the provisions of the Multi-State Cooperative
Societies Act 2000.
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4. Faced with this situation, on 29 March 2016, a two Judge Bench
of this Court observed that despite earnest efforts made by the Court
since the acceptance of the bid of WPL, it was not possible to give
effect to the terms of revival. It appears from the order of this Court
that the Union of India was associated in the preparation of the modalities
by which WPL could be released from the arrangement. Accordingly,
this Court observed as follows :
“Despite earnest efforts made by this Court ever since the
acceptance of the bid of M/s Writers and Publishers Ltd., and
despite a series of hearings in the matter ever since 2009, it came
to be realised, that it would not be possible to give effect to the
terms of revival. It is in the above view of the matter, that this
Court sought suggestions from the rival parties, how the
arrangement could be terminated. It is in the above background, 4
that the following motion bench order came to be passed on
23.02.2016:
“The bidder has suggested two alternative courses of action in
a written note handed over to us in Court today. The above
note is taken on record and marked as Annexure-A. Mr. P.S.
Narsimha, learned Additional Solicitor General representing the
Union of India seeks a short adjournment so as to enable him
to obtain instructions in the matter. All other parties may
likewise obtain instructions in the matter before the next date
of hearing. Post for hearing on 01.03.2016.”
On the issue, as to how and under
what terms and conditions
M/s Writers and Publishers Ltd., could be released from the
arrangement, the parties (consequent upon mutual negotiations),
submitted a joint statement of the Government of India and the
bidder – M/s Writers and Publishers Ltd., dated 03.03.2016. It
seems that on re-consideration, there was a change of heart, at
the hands of Government of India, which then submitted a revised
joint statement dated 05.03.2016. Learned counsel for the rival
parties have assisted this Court, on the manner in which M/s
Writers and Publishers Ltd., should be released from the obligation
of the instant arrangement. Having heard learned counsel, we
are satisfied in recording, that M/s Writers and Publishers Ltd.
should be refunded the entire investment made by them, along
with interest at the rate of 6% per annum (though it was suggested,
that the rate of interest could be at 9% per annum), subject to
M/S WRITERS AND PUBLISHER PVT LTD. v. A K MISHRA,
OFFICIAL LIQUIDATOR [DR. D.Y. CHANDRACHUD, J.]
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deduction of profits made during the period when the arrangement
subsisted.”
5. The above order of this Court dated 29 March 2016 envisages
that WPL would be refunded its “entire investment” together with interest
at 6 per cent per annum. However, the amount invested was to be subject
to a deduction of the profits made by WPL during the period when the
arrangement subsisted. Since WPL was to be refunded the entire
investment made by it with interest, it was evident that the profits realised
by it during the subsistence of the arrangement would have to be deducted.
6. In order to give effect to the above directions, the order of this
Court envisaged a process of verification by Controller and Auditor
General of India (CAG). The CAG was directed to nominate an auditor
to verify the income and expenditure incurred by WPL and the profits
earned from the Super Bazar establishment. The determination by the
auditor was required to be verified by  CAG, upon which it would be
binding upon by the parties concerned. WPL was directed to handover
all the movable and immovable properties of Super Bazar to the OL.
7. The role which was ascribed to CAG emerges from the
following extract, from the order of this Court dated 29 March 2016 :
“In order to effectuate the refund referred to hereinabove 5 (to
M/s Writers and Publishers Ltd.), we consider it just and appropriate
to direct the Comptroller and Auditor General of India, to
nominate
an Auditor, to verify the income and expenditure incurred by M/s
Writers and Publishers Ltd., and also, the profits earned by it from
the Super Bazar establishment, during the period under
consideration. The determination so made by the Auditor, will be
verified by the office of the Comptroller and Auditor General of
India, whereupon, the same shall be binding on all the parties
including M/s Writers and Publishers Ltd. Needless to mention,
that all interested parties shall have the liberty to appear before
the nominated Auditor, and canvass their respective claims.”
8. WPL was held to be entitled to the withdrawal of an amount of
Rs. 14.84 crores deposited by it in the Registry of this Court and to a
further sum of Rs. 8.07 crores which was deposited with the Regional
Commissioner, Employees’ Provident Fund Organization (EPFO), Delhi
together with interest. The above amounts were to be deducted from
the principal amount payable to WPL, while refunding the payments
due.
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9. In pursuance of the directions issued in the order of this Court,
CAG submitted its report dated 1 September 2017. WPL has filed its
objections to the report.
10. Certain aspects of the CAG report form the subject matter of
some dispute. They are:
(i) Interest at the rate of 6 per cent per annum on the share capital
infused by WPL has been disallowed.WPL contends that this is
expressly contrary to the order dated 29 March 2016 by which its
entire investment was to be returned together with interest at 6
per cent. According to WPL, the entire investment would include
the amount invested towards share capital. According to WPL,
subscription towards share capital was only a methodology by
which the bid amount was to be brought in and utilized to discharge
various dues in satisfaction of the orders of this Court. On the
other hand. The affidavit filed by CAG contains a defence of its
view that interest should not be allowed on share capital. CAG
has stated thus :
“The investment by M/s WPL was primarily in the nature of
Share Capital, wherein share holders bear the profits and losses
of a business. Share Holders do not get interest on their
investment made in the form of share capital. Further, if such
a practice is to be followed then it should be made applicable
for other shareholders of Super Bazar too.”
(ii) The CAG report provides that the amount payable to WPL
should be determined after adjustment of losses incurred by Super
Bazar. WPL asserts that
this would be expressly contrary to the
order of this Court dated 29 March 2016 under which CAG was
not required to adjust losses but to only deduct the profits which
accrued in favour of WPL, while determining the amount
refundable. There was, according to WPL, no direction for the
adjustment of losses. Moreover, CAG, in the view of WPL, has
failed to notice that the so called losses in Super Bazar were not
due to business but due to : (i) an amount of Rs. 54.31 crores
being paid to the workers as their past dues in compliance of the
orders dated 7 May 2008 and 13 August 2010 of this Court; (ii)
an amount of Rs. 31 crores being paid to the workmen towards
three years’ salaries; and (iii) an amount of Rs. 15 crores paid
towards arrears of property taxes, education cess and dues which
had accrued even before possession was taken over by WPL;
M/S WRITERS AND PUBLISHER PVT LTD. v. A K MISHRA,
OFFICIAL LIQUIDATOR [DR. D.Y. CHANDRACHUD, J.]
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11. While dealing with these objections, we must in fairness, advert
to the fact that in the order dated 29 March 2016, CAG was required to
nominate an auditor to verify the income and expenditure incurred by
WPL as well as the profits earned by it from the Super Bazar establishment
during the period under consideration. This determination of the auditor
was to be verified by the office of the CAG upon which it would be
binding on all parties including WPL. In other words, the actual exercise
required to be carried out by the auditor was to verify the income,
expenditure and the profits earned by WPL and it was this determination
which would, subject to verification by the CAG, be final and binding.
CAG has, however, proceeded on the basis that WPL is not entitled to
interest at 6 per cent per annum on share capital on the ground that a
shareholder who participates in the profits and losses of a business is not
entitled to interest on share capital.
12. Now the order dated 29 March 2016 indicates that :
“…in the bid which was submitted by M/s Writers and Publishers
Ltd, the infusion of funds stipulated, was to the tune of Rs.504 crores.
The break up thereof, for the revival of Super Bazar, was roughly as
under:
Share Capital - Rs.102 crore
Working Capital - Rs 276 crore
Revival and Revamping - Rs 126 crore”
All the above elements including share capital and working capital
were part of the infusion of funds
contemplated for the revival of Super
Bazar. Eventually, when the process of revival could not take place, this
Court formulated directions for the exit of WPL. After due deliberation
by all the parties, including the Union government, this Court observed
that WPL “should be refunded the entire investment made by them along
with interest at the rate of 6 per cent per annum.. subject to deduction of
profits made during the period when the arrangement subsisted”. WPL
in terms of the aforesaid direction is entitled to interest at 6 per cent on
the entire investment made by it. Investment brought in by way of share
capital, did fall within the above mandate. It is part of the overall
investment by WPL. The order of this Court envisages an exit for WPL.
The order directs that there be a deduction of profits made, since WPL
was being compensated by way of interest on its investment.
Consequently, it would be impermissible to deny WPL the benefit of
interest on its entire investment inclusive of share capital.
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13. We are also of the view that the adjustment of losses incurred
in Super Bazar and their deduction from the amount to be refunded to
WPL is contrary to the mandate of the order dated 29 March 2016.
CAG was only required to deduct the profits which had accrued in favour
of  WPL while determining the amount refundable to it. In its affidavit,
CAG has proceeded on the general consideration that the term ‘profit’
represents a revenue earned from business activity exceeding the
expenses/costs and that a loss is “vice versa”. What this ignores however
are the specific terms of the directions issued by this Court  which
envisage that it was the profits earned by WPL from the Super Bazar
establishment which were to be deducted. Once WPL was allowed a
return on its investment, the profits which it earned were required to be
deducted. This part of the direction does not contemplate that losses
which accrued over the period were to be adjusted. We have also noted
the submission of WPL that the loss accrued not as a result of the business
as such but due to payments which were required to be made to the
workmen in pursuance of the directions issued by this Court.
14. We are accordingly of the view that the report submitted by
CAG needs to be corrected on the above counts namely;
(i) Denial of interest at 6 per cent on the entire investment of
WPL including  by way of share capital; and
(ii) Adjustment of losses;
as explained earlier.
15. WPL has instituted
Contempt proceedings against the OL. In
the reply filed by the OL, it has been stated that the determination of the
income and expenditure of WPL and the profits earned form the Super
Bazar establishment was to be carried out by the auditor nominated by
CAG which was to be thereafter verified by CAG. The OL has submitted
that in these circumstances, it would be inappropriate to contend that he
has violated any part of the directions of this Court. In pursuance of the
order of this Court, the Director General of Audit nominated M/s SPMG
for conducting an audit of the accounts of Super Bazar. Time for the
completion of the audit was extended by this Court on 21 November
2016 and 27 April 2017. The OL has also set out the steps which have
been taken in pursuance of the order of this Court for valuation and sale
of the properties of Super Bazar. Having regard to the contents of the
said affidavit, we are not inclined to entertain the Petition for Contempt
as against the OL.
M/S WRITERS AND PUBLISHER PVT LTD. v. A K MISHRA,
OFFICIAL LIQUIDATOR [DR. D.Y. CHANDRACHUD, J.]
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16. However, we direct that all concerned shall now act in
pursuance of the observations contained in this order and the
interpretation placed on the earlier directions dated 29 March 2016.
17. The Contempt Petition(Civil) Nos 1665-1666 of 2017 in I.A.
Nos. 102-103 of 2017 in Special Leave Petition (Civil) 8398-8399 of
2005 are accordingly disposed of.
Divya Pandey
       Contempt Petitions disposed of.