The Applicant/Karnataka Antibiotics and Pharmaceuticals Limited, (in short 'KAPL'), a Government of India Enterprise, has come up with this Company Application seeking a direction to the 1st Respondent/Punjab National Bank, Chennai and the 2nd Respondent/Official Liquidator to hand over the raw materials, packaging materials and the finished products of KAPL lying at the factory premises of M/s.Arvind Remedies Limited (in short 'Arvind Remedies'), the Company in liquidation (Respondent in Company Petition No.123 of 2016), situated at Shed Nos.38, 39 and 40, SIDCO Industrial Estate, Kakkalur, Thiruvallur – 620 003, forthwith.
2. For the sake of convenience, the parties are hereinafter referred to by their names.
3. On a perusal of the papers, it is seen that KAPL has entered into a Loan Licence Agreement dated 05.05.2016 with Arvind Remedies, with effect from 05.05.2016 to 04.05.2018, i.e. for a period of two years. As per the Agreement, KAPL has agreed to supply approved (RM) bulk drugs and all packaging materials along with Certificate of Analysis to Arvind Remedies. Pursuant to the Agreement, the Applicant/KAPL was supplying raw materials to Arvind Remedies and the latter, in turn, was converting the same into finished products and delivering the same to KAPL.
4. While so, Arvind Remedies went into liquidation proceedings, based on the Winding Up Petition filed by third party creditor vide order dated 17.10.2016 made in C.P.No.123 of 2016. Subsequently, Punjab National Bank filed an Application in C.A.No.264 of 2017 seeking a direction that the Official Liquidator shall hand over the possession of the property of Arvind Remedies in liquidation and this Court, vide order dated 06.04.2017, directed the Official Liquidator to hand over possession of the property of Arvind Remedies to Punjab National Bank. Thus, the raw materials, packaging materials and the finished products of Arvind Remedies were taken into possession by Punjab National Bank.
5. Learned counsel for the Applicant/KAPL submitted that KAPL was not aware of the SARFAESI proceedings in S.A.No.65 of 2017 pending against Arvind Remedies, when they entered into the Loan Licence Agreement with Arvind Remedies on 05.05.2016 and that KAPL was not furnished with a copy of the order passed by the Tribunal in respect of proceedings under Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act (54 of 2002), (in short 'SARFAESI'). He went on to submit that the total worth of the raw materials, packaging materials and finished products of KAPL lying with Arvind Remedies would be much more, however, KAPL is liable to pay less than Rs.6 lakhs for the work executed by Arvind Remedies. He also submitted that KAPL is willing to deposit the amount due to Arvind Remedies either into the credit of the Official Liquidator or into the credit of Punjab National Bank, so that the raw materials could be utilized and money due to Arvind Remedies could be distributed to the secured creditors and other creditors.
6. Learned counsel appearing for the 1st Respondent/Punjab National Bank contended that in terms of the provisions of SARFAESI Act, once proceedings are initiated against a Borrower Company, any Agreement entered into with such Company would be void. That apart, in terms of Section 13 of the SARFAESI Act, KAPL has no right to claim the raw materials and other products that are lying with Arvind Remedies, which is the Company in liquidation. He further contended that in order to escape from the clutches of law, B.Arvind Shah, who is the Guarantor of Arvind Remedies, initiated SARFAESI proceedings in S.A.No.65 of 2017, wherein, KAPL has been made as a party Respondent. According to the learned counsel, the contention of KAPL that they are not aware of the initiation of the proceedings under the SARFAESI Act and the order passed therein, is unacceptable and in that regard, he drew the attention to paragraphs 7.3 and 7.4 of the order dated 10.01.2018 passed in S.A.No.65 of2017 by the Debts Recovery Tribunal-I, Chennai. Relevant portion of the said order is extracted hereunder:
“7.3. According to the learned counsel for the Applicant, the description of the property, viz. Item Nos.1 to 3 in the sale notice is vague. It is stated that in respect of Item No.3 the title to the said property, has been traced to the lease deed instead of the sale deed, and the said ambiguity tantamount to wrong description of the property, hence the sale is liable to be set aside. However, these contentions were strongly refuted by the 1st Respondent Bank. It is no doubt true that insofar as Item No.3 of the property is concerned, the title to the said property has been traced to lease deed instead of sale deed. However, it is to be noted that the document Numbers of the deed are mentioned in sale notice. Therefore, one can easily access to the document by the number mentioned and once the document is accessed, the description of the property can be certainly noticed. Therefore, the same at best is a printing error and not a material error affecting the description of the property and thus the sale notice itself. Hence, the said plea deserves to be rejected, accordingly the same is hereby rejected.
7.4. No doubt, the borrower is entitled to question the correctness of the reserve price. However, when such plea is taken, it is for the borrower to establish the same. Except the oral plea, that the reserve price fixed is too low, no attempt worth had been made by the applicant to establish the value of the property. No valuation report supporting the claim of the applicant has been filed. Therefore, in the absence of any material evidence, this plea also deserves to be rejected.”
7. It is further submitted by the learned counsel appearing for the 1st Respondent/Punjab National Bank that the Bank has issued Auction Sale Notice not only with regard to the movable and immovable items of Arvind Remedies, but also with regard to all the current assets of the Company including the raw materials, as could be seen from the Schedule mentioned in the Sale notice. According to the learned counsel, the contention of KAPL that they have not been furnished with a copy of the order dated 10.01.2018 passed by the Tribunal, is unacceptable, as, Punjab National Bank, vide letter dated 17.11.2016, has informed KAPL about the Recovery Suit amounting to Rs.755.19 crores filed with DRT-II, Chennai, against Arvind Remedies. In the said communication, the Bank has clearly mentioned that a case is filed with CBI, BS & FC, Bangalore against Arvind Remedies and the Bank has taken physical possession of one Unit of at Irrungattukottai and symbolic possession of two units and Thiruvallur, under SARFAESI Act.
8. In reply, learned counsel for the Applicant/KAPL submitted that even though there has been an intimation by Punjab National Bank to KAPL on 23.12.2016, informing them that they will forward a copy of the order passed by the Debts Recovery Tribunal II, Chennai in I.A.No.810 of 2016 in O.A.No.298 of 2016, the same has not been furnished to KAPL. 9. While so, learned Official Liquidator submitted that they are not in possession of the property, Books and Records of Arvind Remedies and that the same are in possession of the 1st Respondent/Punjab National Bank.
10. This contention has been refuted by the learned counsel appearing for the 1st Respondent/Punjab National Bank that Investigation Officials of CBI visited the site in question and found that no records are available and that the Bank cannot be foisted with any liability. 11. Heard the learned counsel for the parties and perused all the material documents available on record.
12. It is not in dispute that the Manging Director of Arvind Remedies, viz. B.Arvind Shah has borrowed huge money from the 1st Respondent/Punjab National Bank and a Recovery Suit amounting to the tune of Rs.755.19 crores is filed with the Debts Recovery Tribunal-II, Chennai against Arvind Remedies. Further, in the sale notice issued by the 1st Respondent/Punjab National Bank, it has been clearly mentioned that apart from the movable and immovable properties, the raw materials supplied by the Applicant/KAPL are lying in the premises of Arvind Remedies and the 1st Respondent/Punjab National Bank has taken possession of the said Company.
13. It is no doubt true that in the present Application, two Government Organizations are fighting against each other for a paltry sum, when the white-collared criminals are trying to escape from the clutches of law.
14. When there is a communication dated 17.11.2016 from the Punjab National Bank to KAPL as regards the pendency of a Recovery Suit to the tune of Rs.755.19 crores against Arvind Remedies, the Applicant/KAPL's contention that they are not aware of the SARFAESI proceedings against Arvind Remedies, is unbelievable. 15. Hence, I am of the view that before passing final orders in the present Application, a Report can be called for from the Drug Controller of Tamil Nadu, Chennai as regards the raw materials said to be supplied by the Applicant/KAPL to Arvind Remedies, so that a quietus can be given in the matter, by handing over the raw materials to the Applicant/KAPL and depending upon the Report, money due to Arvind Remedies can be attributed by the Applicant/KAPL either to the 1st Respondent/Punjab National Bank or to the 2nd Respondent/Official Liquidator.
16. Accordingly, the Drug Controller of Tamil Nadu, Chennai is directed to submit a Report regarding the raw materials said to be supplied by the Applicant/KAPL to Arvind Remedies, and their worth, on or before 15.03.2019.
17. In view of the same, the Managing Director of Arvind Remedies, viz. B.Arvind Shah, the 3rd Respondent herein, shall not leave this Country without the permission of this Court and he shall surrender his Passport to the jurisdictional
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Police within a period of one week from the date of receipt of a copy of this order. The jurisdictional Police, in turn, shall hand over the Passport of the 3rd Respondent/Arvind Shah to the 1st Respondent/Punjab National Bank, after taking necessary acknowledgement. 18. In case, the 3rd Respondent/B.Arvind Shah intends to leave the Country, he shall obtain prior permission from this Court and he shall also intimate the 1st Respondent/Punjab National Bank, as to where he is going to travel and reside and furnish the complete address and telephone number of the place of stay and the details of the persons, who are accompanying him. 19. Registry is directed to mark a copy of this order to the learned Advocate General, who shall inform the Drug Controller of Tamilnadu, Chennai to enable him visit the Company in liquidation and submit his Report on or before 15th March 2019. 20. It is made clear that pendency of any proceedings before this Court is not a bar for the Police to arrest the Managing Director of the Company in Liquidation, if required. 21. List this matter on 15.03.2019.