2019 (2) TMI 968

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.... the ONGC. 3. It appears that the Export and Import Bank of India which had to recover past dues against the said GOL Offshore Ltd. Filed a Company Petition No. 756 of 2014. In the said Company Petition, the learned Company Judge appointed the Official Liquidator vide order dated 6th March, 2017 to take charge of the assets of the Company and by a further order dated 4th December, 2017 the company was directed to be wound up. 4. Since substantial work of the said contract awarded by ONGC in favour of GOL Offshore Ltd was completed and only a small part of work was remaining, and since on account of noncompletion of the project, Axis Bank and ICICI bank were required to continue their performance guarantees and since there was also a threat for encashment of said bank guarantees, Axis Bank and ICICI Bank had filed application before learned Company Judge for directions. Certain directions were issued by the learned Company Judge vide orders dated 23rd March, 2018 and 13th March, 2018, whereby the Official Liquidator was directed to hold meetings with ONGC and also with some of the sub-contractors engaged by the Company in liquidation, for carrying out the remaining contract wo....

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....bserved that the agency was also acceptable to ONGC. The agency had addressed a communication to the Official Liquidator on 23rd April, 2018 identifying inter alia the various punch points for execution of the balance work. The said Mathews has offered to provide all site assistance with the requisite skilled manpower and tools and tackles for attending to these punch points and ensure formal closure of the project through CA/TPI/ONGC. It had estimated a tentative schedule of 56 months for completing the entire project. 8. The perusal of the order would further reveal that the exdirectors of the Company in liquidation, had also addressed a letter to the Official Liquidator, communicating the status of the unfinished ONGC project and the procedure for completion of all pending jobs. The communication had also enclosed two outstanding lists, i.e. one of the names and descriptions of vendors and related works and the other of the outstanding amounts payable to the various vendors and other pending costs and time implications for completion of the balance project. 9. After considering all the material placed before the learned Company Judge by the official liquidator, the learned....

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....r, Ex-Chairman of the company in liquidation, dated 24 April 2018; (iii) These amounts shall be paid to M/s Mathew Associates Hook-UP & Weld Services, identified to act as Project Management Consultant, who in turn would pay to the vendors named in Appendix-'B' to the communication dated 24 April 2018 and proportionate to the respective outstandings indicated against their names; (iv) Immediately after payment of these amounts, the individual vendors shall proceed with the balance work of the project and complete the same in accordance with over all directions and under the supervision of Mathew Associates Hook-Up & Weld Services; (v) Further dues of the vendors towards the completion of the balance work as well as towards 25 per cent of their past dues shall be paid only after the particular project work to the account of the individual vendor is accomplished by such vendor. Such payment shall be made by ONGC upon instructions in that behalf by the Official Liquidator. The Official Liquidator in turn shall certify such payment after seeking appropriate instructions from Mathew Associates Hook-Up & Weld Services; (v) The Applicants shall extend the present count....

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....today. 14. Both the Appeals were listed before us on 29th November, 2018 and on which date the matter was heard at length. Mr. Kamdar, learned Senior Advocate appearing on behalf of the Appellant had submitted that, there is no privity of contract between the ONGC and Mathews, the directions issued by the learned Company Judge (S.C.Gupe, J.) vide order dated 26th April, 2018 and learned Company Judge (K.R. Shriram,J) vide order dated 29th October, 2018, were not permissible in law. He submitted that unless there was privity of contract between the Appellant ONGC and Mathews, no such directions could have been issued by the learned Company Judges. He further submitted if Mathews have any claim, the same could be raised only against the Company in liquidation. As such it was submitted that, the orders passed by the learned Company Judges are liable to be quashed and set aside. Shri Kamdar further submitted that the statement which was made by the ONGC before the learned Company Judge on 26th April, 2018 with regard to the dues payable by the ONGC was erroneous and subsequently in the month of September, it was found that no amount was payable by the Respondent No.2 - ONGC to the C....

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....ed out Shri Kamdar stated that he has not been able to take instructions from the ONGC's higher authorities at Delhi and therefore requested to 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 adv....

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....spondent 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 Hon'ble Court further directed that the said amou....