1/13 4.OLR158.19.

doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

OFFICIAL LIQUIDATOR'S REPORT NO.158 OF 2019

WITH
COMPANY APPLICATION NO.708 OF 2018
IN
COMPANY PETITION NO.149 OF 2012

In the matter of the Companies Act, I of 1956

And
In the matter of Glory Films Limited (In Liqn)

Total Finance Global Services SA & Ors. )....Petitioners

----
Mr.Roshan D’souza i/by Aarti Suvarna i/by Yogesh Kela & Umesh Kela
-ex-directors.
Mr.Shanay Shah for OL.
[Mr.Mahendhar Aithe-Company prosecutor for official liquidator].
Mr.Rohan Cama with Harian Advant and Vinod Kothari for secured
creditor (ARCIL).
Adv.Shivangi Agarwal i/by Dhruve Liladhar & co. for original
petitioner.
[Mr.Sudarshan Chokani and Mr.Mukesh Ashar-directors of Govinda
Industries Pvt. Ltd., Mr.Yogesh Kela-ex-director, Mr.Umesh Kela-ex-
director, Mr.Abhilash Kela-ex-director, Ms.Lata Kela-ex-director and
Mr.Navin Chandrakant Chokshi ex-director present are present].
----

CORAM: K.R.SHRIRAM,J
DATE : 4.9.2019

P.C.:-

1. On 14.8.2019 the persons mentioned in para-5 of the order

were directed to remain present in Court. I am told all those persons

viz. Yogesh Kela, Umesh Kela, Navin Chandrakant Chokshi, Abhilasha

Kela Lata kela and Mukesh Ashar are present in court. Mr.Ashar states

KJ

::: Uploaded on - 06/09/2019 ::: Downloaded on - 16/09/2019 00:54:50 :::

 2/13 4.OLR158.19.doc

that himself and Mr.Sudarshan Chokani who is also present today are

the only two directors of Govinda Industries Pvt. Ltd.,

2. In para-4 of the said order of 14.8.2019, Govinda industries was

directed to pay sum of Rs.50,000/- as donation to Tata Memorial

Hospital within two weeks. Donation has not been paid within two

weeks but Mr.Ashar states that it was paid on 3.9.2019. He has no

explanation as to why it was not paid within two weeks and simply

states that it was not paid. This attitude of Mr.Ashar has to be

condemned and he is put to notice that court will take a very serious

view of his attitude and may also issue contempt notice against him if

his attitude persists. Govinda Industries Pvt. Ltd., is directed to pay

sum of Rs.10,000/- as donation for not having complied with the

court’s order and this amount shall be paid to Kirtikar Law Library,

Bombay High Court. This amount shall be paid during the course of

today and proof of payment of Rs.50,000/- to Tata Memorial Hospital

and Rs.10,000/- as donation to Kirtikar Law Library shall be filed by

tomorrow.

3. Coming to Yogesh Kela, Umesh Kela, Abhilasha Kela and Lata

Kela, it is a clear case of deception and fraud being played on the

court. These 4 persons have dealt with the assets that belonged to the

KJ

::: Uploaded on - 06/09/2019 ::: Downloaded on - 16/09/2019 00:54:50 :::

 3/13 4.OLR158.19.doc

company in liquidation and have misappropriated almost Rs.4.5

crores.

4. The petition was presented on 5.3.2012. Petition was admitted

on 21.8.2013 and the final winding up order was passed on

12.11.2013. Against the winding up order, the company preferred an

appeal and in appeal on 11.8.2014 an order came to be passed

directing the company to maintain status-quo regarding its immovable

properties. The appeal came to be disposed on 15.12.2017 and the

net effect was that the winding up order was upheld and not

disturbed. In the meanwhile, on 11.3.2015, i.e., much after the

winding up order was passed, the ex-directors entered into a lease

deed with one Govinda Industries Pvt. Ltd. On 16.3.2016, a board

resolution of the company in liquidation has been passed signed by

Yogesh Kela as director authorizing him/an employee to enter into

lease agreement with Govinda Industries Pvt. Ltd., for giving on lease,

22,000 sq. mtrs. of non agricultural land together with 15,600 sqr.

Mtrs. of RCC structures standing thereon. The address of Govinda

Industries Pvt. Ltd., Yogesh Kela who is present in court states, is his

residential address. The 1st directors of Govinda Industries Pvt. Ltd.,

were one Abhilasha Kela and Lata Kela, the wife and mother

respectively, of Yogesh and Umesh Kala- two ex-directors of company

KJ

::: Uploaded on - 06/09/2019 ::: Downloaded on - 16/09/2019 00:54:50 :::

 4/13 4.OLR158.19.doc

in liquidation. Govinda Industries Pvt. Ltd., passed a resolution on

1.4.2016 authorizing one Bhaktikant Bhat to sign the agreement on

behalf of Govinda Industries Pvt. Ltd., for taking on lease the property

as mentioned earlier in the resolution of the company in liquidation.

Based on this resolution, 2nd lease deed dated 6.4.2016 was entered

into with Govinda Industries Pvt. Ltd., by the ex-directors of the

company in liquidation to give on lease assets of the company in

liquidation. This lease deed has also been registered. The rent payable

was Rs.3,00,000/- a month. Admittedly, Govinda Industries Pvt. Ltd.,

has paid a sum of Rs.4,32,52,041/- for the period between 10.3.2015

to 30.6.2019 and this amount has been deposited in a bank account

opened in the name of the company in liquidation and operated by the

Kela brothers. I am not for a moment accepting that this figure is

correct but the fact is according to the ex-directors of the company in

liquidation, this is the amount that was paid by the Govinda Industries

Pvt. Ltd., to the company in liquidation. This entire amount plus

some more totaling to Rs.4,36,24,798/- has been withdrawn from the

account which was continued to be maintained in the name of the

company in liquidation and according to Yogesh Kela this amount was

used to pay the salaries of the staff of company in liquidation and

other pending dues. What are the pending dues and salaries to be

paid after the company is in liquidation, no details are provided. A

KJ

::: Uploaded on - 06/09/2019 ::: Downloaded on - 16/09/2019 00:54:50 :::

 5/13 4.OLR158.19.doc

simple bald statement is found in para-4 of the affidavit in reply. I

have to state that in para-11 of the affidavit of Yogesh Kela affirmed

on 30.7.2019, and I have to note that the address given in the

verification clause is the same as the registered office address of

Govinda Industries Pvt. Ltd., he states that between 11.3.2015 and

30.6.2019 sum of Rs.4,36,24,798/- was spent by the company in

liquidation towards repair and maintenance of plant and machinery,

repairs and maintenance of factory, electricity charges, power and fuel,

salaries and insurance charges, and this amount was spent from the

money received by the company in liquidation from the lessee Govinda

Industries. I have to note that the Official Liquidator also took

physical possession only on 14.8.2019 thereby permitting the Kela

brothers to mis-use the property of the company in liquidation in

connivance with their spouse and mother.

5. Therefore, Yogesh Kela, Umesh Kela, Lata Kela and Abhilasha

are prima facie guilty of contempt of court. It is not just disobedience

of orders of the court but they are also guilty of interfering with the

administration of justice

6. Coming to the directors of Govinda Industries Pvt. Ltd., one

Mr.Sudarshan Chokani and Mr.Mukesh Ashar, Mr.Mukesh Ashar has

KJ

::: Uploaded on - 06/09/2019 ::: Downloaded on - 16/09/2019 00:54:50 :::

 6/13 4.OLR158.19.doc

filed an affidavit dated 31.7.2019. According to Mr.Ashar on

31.8.2018, he and Sudarshan Chokani purchased the entire shares of

Govinda Industries Pvt. Ltd., from the erstwhile directors and

promoters of the company. He states that he and Mr.Chokani were

appointed as directors of Govinda Industries Pvt. Ltd., on 31.8.2018

on which date Abhilasha Kela and Lata Kela also resigned. At the

same time, I have to note that in the company master data extract

taken on 30.7.2019, which is annexed to the affidavit of Mr.Ashar, it is

mentioned that Mr.Chokani and Mr.Ashar became directors only on

5.11.2018. They have however, not disclosed how much was the

consideration paid by them for buying shares held by Abhilasha Kela

and Lata Kela. I would also assume that looking at the size of the land

which is at Daman, it would be quite substantial. I have to also note

that as on 30.7.2019, the date on which company master data extract

was obtained by Mr.Ashar, the registered address of the company is

still 401, Devpooja, North Avenue Road, Santacruz (West), Mumbai-

400 054, which is the residential address of Lata Kela, Abhilasha Kela

Yogesh Kela and Umesh Kela. It prima facie appears that Chokani and

Ashar are hand in glove with Kelas to play fraud upon the court, the

Liquidator and all creditors. These two persons are helping Kelas to

circumvent the winding up order.

KJ

::: Uploaded on - 06/09/2019 ::: Downloaded on - 16/09/2019 00:54:50 :::

 7/13 4.OLR158.19.doc

7. I have to also note that Govinda Industries Pvt. Ltd., had filed a

Regular Civil Suit no.2 of 2018 on 17.1.2018 before the Civil Judge,

(J.D) Daman, at Daman for a declaration and mandatory and

permanent injunction against the order dated 11.9.2017 of the District

Magistrate and Mamlatdar notice dated 23.9.2017 without obtaining

leave of this court under section 446 of the Companies Act 1956 and

also filed an application under order 39 rule 1 of Section 151 of the

Code of Civil Procedure for interim relief. The defendants were (1)

Glory Films Ltd., (2) Asset Reconstruction Company (India) Ltd., (3)

Mr.Yogesh Kela (4) Mr.Umesh Kela and (5) Mr.Prakash Kela. Govinda

Industries Pvt. Ltd., obtained an ex-parte injunction order on

16.1.2018 restraining the Asset Reconstruction India Limited, which is

the applicant in Company Application No.708 of 2018. The prayers-(a)

to (g) in the said suit read as under :-

(a) The suit may please be decreed with cost ;

(b) By an order and decree it may please be declared that the

Plaintiff is a protected tenant of landlord Defendant no.1 of
the suit properties being leased premises and he cannot be
dispossessed or evicted from the suit properties without
following due process of law ;

(c) By an order of permanent injunction Defendant no. 1 & 2,

their agents, servants, officers or any authority or any person
claiming through them or acting on their behalf shall not
interfere with peaceful possession of Plaintiff and shall not
evict or dispossess the Plaintiff from the suit properties
without following due process of law ;

(d) By an order of permanent injunction the Defendant shall

KJ

::: Uploaded on - 06/09/2019 ::: Downloaded on - 16/09/2019 00:54:50 :::

 8/13 4.OLR158.19.doc

be restrained to enforce, present and rely upon the order of

District Magistrate dated 11/09/2017 & Mamlatdar notice
dated 23/09/2017 before any authority and to create any
hindrance in the peaceful enjoyment and occupation of the
suit properties by the Plaintiff ;

(e) By an order of mandatory injunction defendant no. 2 may

please be order to withdraw the application u/s 14 of
SARFAESI made to District Magistrate, Daman and declare
that all the action arise out of an application is illegal and not
binding on the Plaintiff and to his tenancy right over suit
properties ;

(f) Ad-interim and interim reliefs in terms of prayer (c) & (d)
above; and

(g) Any other reliefs, claim and cost as this Hon. Court may
deem fit.

From prayers (b) & (c) therefore, it is clear that the ex-directors of the

company in liquidation had parted with possession and created 3rd

party rights on Govinda Industries Pvt. Ltd., because otherwise

Govinda Industries Pvt. Ltd., would not have sought a declaration as a

protected tenant. On the date the suit was filed, directors of Govinda

Industries Pvt. Ltd., were Abhilasha Kela and Lata Kela. This only

enforced the fact that all the 4 family members were playing in

concert, fraud upon the court.

8. Registry therefore to suo moto issue contempt notice to

Mr.Yogesh Kela, Mr.Umesh Kela, Mrs.Abhilasha Kela, Mrs.Lata Kela,

Mr.Sudarshan Chokani, Mr. Mukesh Ashar and Govinda Industries Pvt.

Ltd., returnable on 16.10.2019.

KJ

::: Uploaded on - 06/09/2019 ::: Downloaded on - 16/09/2019 00:54:50 :::

 9/13 4.OLR158.19.doc

9. On the next date, all the 6 individuals mentioned above shall

remain present in court and they shall continue to remain present on

every date unless otherwise exempted. Mr.D’souza states that the

passport of Yogesh Kela is deposited with the Prothonotary & Senior

Master, High Court, Bombay. Umesh Kela, Lata Kela and Abhilasha

Kela shall deposit their passports with prothonotary and Senior Master

by 5.9.2019 and confirm compliance to this court at 3.00 p.m. on

5.9.2019. Prothonotary & Senior Master shall send communication to

the passport authorities by giving details of the passports, that

passports of these 4 persons have been deposited with him and

passport authority shall not issue any duplicate passport without leave

of this Court.

10. All the while, Yogesh Kela and Umesh Kela have been telling the

court that they were the only two directors of the company in

liquidation. In the notice issued by the Assistant Superintendent Dist.

Court, Daman in the Civil Appeal No.1 of 2019, name of one

Mr.Prakash Kela who, I am informed, is the father of Yogesh and

Umesh Kela, is also mentioned as ex-director of the company in

liquidation. Therefore, suo moto contempt Notice also be issued to

Mr.Prakash Kela, returnable on 16.10.2019.

KJ

::: Uploaded on - 06/09/2019 ::: Downloaded on - 16/09/2019 00:54:50 :::

 10/13 4.OLR158.19.doc

11. As regards the registered lease deed entered into with Govinda

Industries Pvt. Ltd., the same has been entered into in defiance of

status-quo order passed originally by the mother and wife of the ex-

directors of the company in liquidation as promoters of Govinda

Industries Pvt. Ltd. Once the issue of breach is placed on the Pedestal

of public policy and the very faith of litigants in Rule of law and

administration of justice, if allowed to continue, it would mean that

parties can breach and violate court’s order openly and with impunity

and neither they nor the beneficiaries suffer any consequences.

Division Bench of this court in 1Keshrimal Jivji Shah Vs. Bank of

Maharashtra has recognized the principle that transfer of immovable

property in violation of an order of injunction or prohibition issued by

court of law confers no right, title or interest on the transferee, as it is

no transfer at all. The transferee which is Govinda Industries Pvt. Ltd.,

cannot be allowed to reap advantage or benefit from such transfer.

Therefore, the lease has to be cancelled. If this course is not adopted

then the tendancy to flout orders of courts which is increasing day by

day can never be curbed.. The court exercises its powers on the

foundation of respect and regard for its authority by litigating public.

People would loose faith and respect completely if the court does not

curb and prevent this tendency. It would be useful to reproduce paras-

1 2004(3) Mh.L.J 893

KJ

::: Uploaded on - 06/09/2019 ::: Downloaded on - 16/09/2019 00:54:50 :::

 11/13 4.OLR158.19.doc

25 & 26 of the said judgment and the same read as under :-

“25. In our view, therefore, if the facts in the present

case are appreciated in the light of the decisions of the
Supreme Court (supra), it is clear that during the
respondent No.2 has created sub-lease in favour of
petitioners herein. It is of considerable significance that
respondent No.2 to 4 did not appear either to oppose
the O.a. or during the proceedings, initiated by
petitioners herein. Their silence on the material aspect
of violation of injunction order is eloquent enough. We
cannot hold that conclusion of the Courts below to the
effect that power to transfer the said property was
subject to the injunction order issued by this Court, is in
any way vitiated by error of law or is in any way
perverse. In the light of the decision of the Supreme
Court, the transfer was clearly illegal if not void.

26. We cannot accept Shri Naphade’s contention that

observations of the Supreme Court in the case of Surjeet
Singh should be read as restricted to proceedings under
Order 22, Rule 10 of Civil Procedure Code and the same
cannot be 3extended to defiance of injunction order
issued under Order 39, Rule 1 of Civil Procedure Code.
Once the issue placed on the pedestal of public policy
and the very faith of litigants in Rule of law and
administration of justice, then it is not possible to make
the distinction or bifurcation suggested by Shri
Naphade. It would mean that consequences of
nullifying such transaction not being provided by the
Statute, it would not lose its legal efficacy even if it is in
utter disregard to or in violation of or breach of
prohibitory order or order of injunction issued by a
Court of law. It would mean that parties can breach and
violate Court orders openly and with impunity and
neither they nor the beneficiaries suffer any
consequences. It is time that we recognize the principle
that transfer or immovable property in violation of an
order of injunction or prohibition issued b y Court of
law, confers no right, title or right, title or interest in
the transferee, as it is no transfer at all. The transferee
cannot be allowed to reap advantage or benefit from
such transfer merely because he is not party to the

KJ

::: Uploaded on - 06/09/2019 ::: Downloaded on - 16/09/2019 00:54:50 :::

 12/13 4.OLR158.19.doc

proceedings in which order of injunction or other

prohibitory direction or restraint came to be issued. It is
enough that the transferor is a party and the order was
in force. These two conditions being satisfied, the
transfer must not be upheld. If this course is not
adopted then the tendency to flout orders of Courts
which is increasing day by day can never by curbed.
The Court exercises its powers on the foundation of
respect and regard for its authority by litigating public.
People would loose faith and respect completely if the
Court does not curb and prevent this tendency. The
note of caution of the Supreme Court must be
consistently at the back of everbody’s mind. Therefore,
Shri Naphade is not right in the distinction which he is
trying to make”.

12. The official Liquidator to forward a copy of this order to the Sub

Registrar’s office immediately and forthwith on receiving a copy of this

order, the Sub Registrar shall note the cancellation of the lease dated

11.3.2015 and 6.4.2016..

13. On 31.7.2019 Yogesh Kela was directed to pay sum of

Rs.1,00,000/- as cost to the Official Liquidator. Mr.Aithe states Yogesh

Kela gave a cheque on 9.8.2019 for Rs.1,00,000/- and the cheque has

been dishonoured for `funds insufficient’. Mr.D’souza states Mr.Yogesh

Kela has given Pay Order of Rs.1,00,000/-. I have to note that it was

the bounden duty of Mr.Yogesh Kela when he issued a cheque to the

Liquidator who is an extension of this court, that `sufficient funds’

was maintained in his bank account. This is nothing but deliberate

KJ

::: Uploaded on - 06/09/2019 ::: Downloaded on - 16/09/2019 00:54:50 :::

 13/13 4.OLR158.19.doc

mischief by Mr.Yogesh Kela. Mr.D’souza states that court should not

issue another contempt notice against Mr.Yogesh Kela. Mr.Yogesh Kela

to avoid receiving one more contempt notice is directed to pay sum of

Rs.50,000/- by way of Pay Order latest by 12.00 noon on 5.9.2019 in

favour of Official Liquidator and report compliance along with

Mr.Ashar at 3.00 p.m. tomorrow.

14. All the 6 persons i.e., Yogesh Kela, Umesh Kela, Sudarshan

Chokahi, Abhilasha Kela, Lata Kela and Mukesh Ashar shall remain

present in court tomorrow.

15. Mr.Aithe also points out that when the Official Liquidator’s

representative went to take physical possession, there were various

cabins which were locked and Mr.Yogesh Kela was directed to provide

keys to that cabins. So also Govinda Industries Pvt. Ltd., but till date,

keys are not handed over. Mr.Asher states that he shall hand over all

the keys to Liquidator’s office by 12.00 noon tomorrow.

16. Mr.Navin Choksi need not remain present in court unless

otherwise ordered.

(K.R.SHRIRAM,J)

KJ

::: Uploaded on - 06/09/2019 ::: Downloaded on - 16/09/2019 00:54:50 :::