Avil Menezes vs BHEL And Ors.

B.S.V. Prakash Kumar, J

Mr. Avil Menezes, Liquidator and Counsel namely Mr. Rohan Rajadhyaksha and Mr. Dhrupad Vaghani for the Applicant and Mr. D.K. Singh, Representative for the Regional Labour Commissioner (R2), appeared and the hearing has been conducted through video conferencing.

It is an application filed by the Liquidator seeking directions as follows:

a. To direct the Respondent No. 1 to forthwith release payments to extent of INR 4,09,15,481/- (Indian Rupees Four Crores Nine Lakhs Fifteen Thousand Four Hundred Eighty One only) to enable the Applicant to further make payments to the labour contractors /vendors at the site;

b. To direct the Respondent No. 1 not to invoke the Bank Guarantee until the liabilities under the Contract is ascertained and the Contract is concluded in this regard;

c. To direct Respondent No. 2 not to take any action against the Applicant in light of Section 233 of the Code and the recent Supreme Court judgement on MHA Circular;

d. In the event any action is initiated against the Applicant, to quash such action as being illegal, contrary to the provisions of Code and in light of the order passed by the Hon'ble Tribunal, New Delhi Principal Bench in the matter of Alchemist Asset Reconstruction Limited vs. HOTEL GAUDAVAN PVT. LTD. & Ors. in CP/CA. No. (IB)-23(PB)/2017 dated 22nd September 2017.

e. To direct Proforma Defendant to honour payment requests in a time bound manner and if any clarifications are required in relation to such payment requests, such clarifications to be sought in a time bound manner.

f Pending the hearing of the final disposal of the Application, the Hon 'ble Tribunal be pleased to:

i. direct the Respondent No. 2 not to take any action against the Applicant; and'

ii. direct any authority not to register any complaint against the Applicant.

g. For interim and ad-interim reliefs in terms of prayer (f) above; and h. Pass such other necessary orders to enable the Applicant to carry on the liquidation process of the Corporate Debtor.

On hearing the submissions of the Applicant as well as the Regional Labour Commissioner, it appears that the labourers who worked for this Company have filed a complaint before R2 stating that their dues from December, 2019 have not been paid by this liquidator managing the Corporate Debtor.

As against this compliant, the Liquidator counsel says that he has been paying dues of the workers through a Labor Contractor by simultaneously admitting that this Corporate Debtor has to pay dues outstanding of an amount around ?2Crore. He says that the Liquidator cannot pay this amount because around ?4Crore payable by BHEL, to whom the Debtor Company working, till date has not been paid.

When this Bench has asked the Liquidator as to whether any money lying in the Liquidator's account, the Liquidator has categorically mentioned that around `4Crore lying in the Liquidator's account.

In this COVID-19 crisis, it is a bounden duty of every company at least to pay the dues to the laborers, if not advances. In this case, it is an admitted fact this Liquidator has not paid the dues of the workers for an amount of about `2 Crore. However, since the Liquidator counsel has stated that even if an order is passed to pay money to the laborers, the liquidator has no details of the laborers and details of dues payable to them; therefore he has sought time to ascertain all the details so as to make payment to the laborers.

As to this submission, we are of the view that the Company ought to have maintained the Register of the laborers and the dues payable to the laborers, now at this juncture the Liquidator shall not come with an excuse details are not available by saying one Labor Contractor is present in between the laborers and the Corporate Debtor.

In view of the reasons aforementioned, since it has already been admitted by the Liquidator that `2Crore are due and payable to the laborers, he shall place all those particulars by next date of hearing. Until next date of hearing, the Liquidator shall retain at least not less than `2Crore in the Liquidator's account until payment is made to the labourers.

With regard to payment to come from BHEL (R1), BHEL is hereby directed to explain on the next date of hearing as to why it has failed to make payment to this Corporate Debtor as sought by it.

List this application for further hearing on 26.05.2020.