SHEET IN THE HIGH COURT AT CALCUTTA Extra Ordinary Jurisdiction ORIGINAL SIDE EC No.1127 of 2015 ARMADA (SINGAPORE) PTE LIMITED Versus GUJARAT NRE COKE LIMITED EC No.1129 of 2015 ARMADA (SINGAPORE) PTE LIMITED Versus GUJARAT NRE COKE LIMITED BEFORE: The Hon'ble JUSTICE DEBANGSU BASAK Date : 8th November, 2016.
Appearance: Mr.Ranjan Bachawat, Sr.Adv.Rudraman Bhattacharyya, Adv.Mr.S.K.
Bajoria, Adv.Mr.K.Chatterjee, Adv.Mr.M.Sarkar, Adv.Mr.Jishnu Saha, Sr.Mr.M.S.Tiwari, Mr.S.Tiwari, Ms.Arpita Saha, The Court : Two execution applications are taken Adv.Adv.Adv.Adv.up together for hearing.
Both the execution applications are at the behest of an award holder.
Learned senior Advocate for the award holder submits that, the aggregate of the two awards passed in favour of the award holder is approximately Rs.55 crores.
He submits that, pursuant to the directions given by the Court, the judgement-debtor has not disclosed the entirety of its assets through the affidavits allowed to be filed in Court.
In any event, he submits that, the defence taken in the affidavit is that, there is a subsisting Corporate Debt Restructuring (for short ‘the CDR’) and that, the assets of the judgement debtor are charged in its entirety in favour of the banks and financial institutions.
He submits that, such contention on behalf of the judgement-debtor is incorrect.
its assets are not charged.
The entirety of Even if it is charged, there is no law to prevent the executing Court from directing sale of such charged properties.
He further submits that, no evidence has been produced on record to suggest that, the ‘CDR’ is still under operation.
He refers to the balance-sheet judgement debtor as at March 31, 2015 and submits that, the land and building to the value of Rs.60 crores should be directed to be sold.
He points out that the land and building value of the judgement debtor is in excess of the amount of the award.
In such circumstances, it would be proper to direct the judgement debtor to demarcate the land and building to the extent that it covers amount of the two awards of the award holder which should be put up sale to satisfy the two awards.
Learned Senior Advocate for the award-holder places the original award.
He submits that, the requirements under Section 47 of the Arbitration and Conciliation Act, 1996 stands satisfied by the award-holder in view of the disclosure of the documents and the averments made in the execution application.
Learned Senior Advocate for the award-holder also submits that the judgment-debtor had withdrawn their objection under Section 48 of the Arbitration and Conciliation Act, 1996 and that, they have not filed any further application.
Learned Senior Advocate for the judgement-debtor submits that the ‘CDR’ of the judgment-debtor is under implementation.
In view of agreement the implementation governing the of same, the the CDR and judgment the nature debtor is of not the in a position to pay the award holder as it would be a payment without the consent of the secured creditORS.He further submits that, the judgment-debtor has applied for grant of sanction to a scheme for payment to its creditORS.Such scheme is under consideration by the appropriate Court.
the He submits that the entirety of the assets of judgment-debtor are institutions.
He entered between financial into refers charged with to trust the institutions, in the the and judgment-debtor support of banks the and financial retention agreement and the contention banks that, and the ‘CDR’ is under operation.
I have considered the rival contentions of the parties and the materials made available on record.
The execution application was taken up by this Court on March 9, 2016 for the fiRs.time.
Ever since then this Court has been requesting the judgment-debtor to put in some money towards part satisfaction of the decretal amount.
Despite such opportunities being given repeatedly, the judgment-debtor has not volunteered to pay any amount to the award-holder on the ground that the ‘CDR’ package does without the not permit consent of the judgment-debtor the banks and to pay financial any amount institutions.
Assuming that to be so, the matter is pending since March 9, 2016.
The judgment-debtor has not taken any steps to approach the banks and financial institutions concerned for the purpose of grant of permission to pay any amount to the award-holder.
In any event, the pendency of the ‘CDR’ scheme or an application for grant of sanction of a scheme under the provisions of the Companies Act does not prevent the executing Court from executing the decree unless an appropriate Court has passed an order restraining the award-holder from putting the award into execution.
No such order has been produced.
Two awards remain outstanding.
The provision of Section 47 of the Act of 1996 stands satisfied by the award holder.
The value of the two awards aggregate to a sum in excess of Rs.55 crores.
In such circumstances, it would be appropriate at this stage to appoint Joint Receivers over the land and building of the judgment-debtor for a value of Rs.60 crores.
The judgment-debtor through its statutory auditor will specify the land and building of such value fortnight to from the date.
Joint The Receivers Joint appointed Receivers will herein proceed within to a take symbolic possession of such land and building forthwith thereafter.
For the purpose of taking symbolic possession of the properties, the Joint Receivers will be entitled to act severally.
The Joint Receivers will thereafter proceed to put up the properties for sale by public auction.
The sale will be subject to confirmation of Court.
The Joint Receivers will act jointly in conducting the sale of the properties.
The Joint Receivers will hold the sale proceeds subject to the directions of the Court.
So far as the sale proceeds are concerned, the question of priority of payment has to be decided.
Mr.Amitava Advocate, entitled are to Deb, Advocate, appointed an initial as the and Joint remuneration Mr.Kaushik ReceiveRs.of Chowdhury, They Rs.25,000/- will each.
be The further remunerations of the Joint Receivers will be decided later on.
The award-holder will pay the remunerations to the Joint Receivers at the fiRs.instance.
The award-holder will also make necessary arrangements for the travel and accommodation of the Joint Receivers for the purpose of taking the symbolic possession and for the purpose of selling the properties concerned.
The awardholder will be entitled to add the costs expended in this regard to its claim.
List both the execution applications in the monthly list of December, 2016.
(DEBANGSU BASAK, J.) cs.