TaxTMI 
TaxTMI 
2022 (3) TMI 513
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..... However, since a lot of time has been consumed in hearing this matter at length, I shall endeavour to deal with the same in some detail. 2. The applicant/defendant no. 2 has filed G.A. No. 7 of 2021 in C.S. No. 77 of 2013 seeking dismissal of the instant suit on the grounds of abatement and further direction upon the Special Officer appointed by the court to restrain him from carrying out the valuation and sale of the concerned goods (10,000 Metric Tons of "Metallurgical Coke" hereinafter referred to as "Met Coke"). G.A. No. 8 of 2021 in C.S. No. 77 of 2013 has been filed by the plaintiff to seek necessary amendment of the plaint to bring the liquidator of the plaintiff company on record to represent it in the instant suit. The issues involved in both the applications emanate from the same set of facts and events, hence, both the applications were heard together by the Court. The facts of the matter are delineated below: a. The present suit was originally instituted by one Dankuni Steels Ltd. In the said suit, the then plaintiff had sought to claim relief, inter alia, in respect of 11,074.09 Metric Tonnes of Met coke lying at Visakhapatnam (hereinafter referred to as "the good....
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....ourt initially on May 25, 2017 was pleased to stay the order dated May 15, 2017 and thereafter by its order dated December 14, 2017 was pleased to set aside the order dated May 15, 2017 and directed the Special Officer to get the valuation done afresh and on that basis to issue a fresh public notice inviting bids for the goods in question with clear stipulation that the reserve price is exclusive of taxes and to ascertain the exact amount of charges and taxes which is to be indicated in the public notice for the benefit of the intending bidders making their bids. f. Thereafter, the plaintiff has gone into liquidation by an order dated September 26, 2018 passed by the National Company Law Tribunal, Kolkata Bench. g. In October, 2018, the defendant no. 1 had made an application being G. A. No. 3073 of 2018 in the Appeal being A.P.O. No. 293 of 2014 claiming diverse reliefs in connection with the concerned goods. Such reliefs were sought for by the defendant no. 1 though the defendant no. 1 itself had already filed a suit in this Hon'ble Court being C. S. No. 293 of 2015 against the plaintiff. When the said application came up for hearing on January 21, 2020 before another Div....
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....uld be stayed and his client should be given possession of the same. The judgments relied upon by him are as follows: a) Lachu -v- Mohan Lal and Ors reported in AIR 1936 Lah 83; b) Velji Sivji and another -v- Mathuradas Haridas reported in AIR 1948 Bom 47; c) Ishar -v- Mst. Soma Devi reported in AIR 1959 P&H 295; d) The Swadeshi Cotton Mills Co. Ltd. -v- The Government of U.P. and Ors. reported in (1975) 4 SCC 378; e) State of West Bengal -v- National Builders reported in (1994) 1 SCC 235; f) Perumon Bhagvathy Devaswom -v- Bhargavi Amma reported in (2008) 8 SCC 321; g) Entertainment Network Limited -v- Super Cassette Industries Limited reported in (2008) 13 SCC 30; and h) Balwant Singh -v- Jagdish Singh and Ors. reported in (2010) 8 SCC 685 4. Mr. Bose, Senior Advocate appearing on behalf of the liquidator has submitted that the arguments made by the applicant are farcical in nature and premature, to say the least. He has submitted that the liquidator was always acting in the suit as would be evident from the appearance of the liquidator and/or his representatives before the special officer appointed by this Court with regard to the sale of ten thousand metric tons....
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.... to security for costs and the procedure enumerated in Rule 8 Clause 2 are in my view not relevant for the present lis. What is to be noted in the present case is that the liquidator was appearing before the Receiver with regard to the sale of ten thousand metric tons of Met Coke and had also appeared before the Court, that is, the Single Bench & Division Bench of Hon'ble Calcutta High Court, with regard to the sale of the coke. Undoubtedly, the liquidator even after having assured the High Court that steps would be taken for impleading himself into the litigation failed to do so. Such failure may amount to a lackadaisical approach of the liquidator but cannot under any circumstances be seen as a positive assertion to decline to continue the suit. Impleading the liquidator is a mere technical requirement and nothing more. One must keep in mind that a company that goes into liquidation may at any point of time be able to come out of liquidation and the abatement that takes place would be apropos the liquidator only and not the company. In fact, the next Rule, that is, Rule 9 under Order 22, clearly allows the liquidator and/or the company to apply for setting aside of the abatement ....
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....d under Order XXII, Rule 8, of the Code of Civil Procedure the proceedings cannot abate and must be deemed to continue. Relevant paragraph of the judgement is delineated below: "There is no limitation provided for the Official Assignee to appear and apply for substitution or for the debtor to appear and apply for the restoration of his name on the record after the adjudication is annulled. Till an order, is obtained under order XXII, rule 8, of the Code of Civil Procedure the proceedings cannot abate and must be deemed to continue. The lower appellate court was therefore right in dismissing the preliminary objection. The learned counsel for the defendant appellant admits that he cannot support the appeal on the merits. The appeal fails and is dismissed with costs." 9. As discussed above, in the present case there has been no order of the Court seeking an explanation from the liquidator or any order of Court seeking a security for the costs incurred by the defendants. Furthermore, it is very apparent that the liquidator has been acting in the suit with reference to the movable suit property in question and has taken all necessary steps therein. Under these circumstances, I am u....