Magma Leasing Limited vs N.E.P.C. India Ltd.

Satyabrata Sinha, J.—A purchaser in an auction sale has filed an application before this Court claiming, inter alia, the fallowing reliefs:

(a) The Respondent Nos. 1 and 2 be directed to bring back three WT Gs, being SI. No. 15, 16 and 19 mentioned in the Sale Notice and the machine components of two WT Gs being SI. No. 17 and 18, a list whereof being Annexure ''U'' hereof, to the site for the purpose of delivery to your Petitioner and the Respondent Nos. 1 and 2 be directed to deliver five WT Gs covered by the order of sale of this Hon''ble Court in the working condition;

(b) The Respondents Nos. 1 and 2 be directed to compensate your Petitioner for cost and expenses incurred, particulars whereof set out in Annexure ''O'' hereof along with a sum of Rs. 50,000/- as claimed in paragraph 24 hereof within the time as this Hon''ble Court may fix and in default of such payment, the assets of the Respondents No. 1 and 2 be attached;

(c) In default of the Respondent No. 1 and 2 bringing back and said five WTGs sold to your Petitioner in working condition and further and other appropriate direction and order be passed as this Hon''ble Court may deem fit and proper.

The fact of the matter lies in a very narrow compass.

A suit was filed by the original Appellant Magma Leasing Limited against the Respondents herein claiming possession of 5 Nos. Wind Turbine Generators and has also claimed a decree of Rs. 5,00,52,819.00. According to the Plaintiff, a huge amount was advanced to the Respondents to purchase the said 5 wind Turbines in terms of five hire purchase agreements entered into by and between them. On a prayer made by the Plaintiff, the learned trial Judge appointed a ''Receiver'' in respect of the said 5 Wind Turbines but the Court refused to pass any order as regard sale thereof. Being aggrieved by and dissatisfied with the second part of the order dated December 8, 1998, an appeal and application were filed being G.A. No. 8217 of 1998 and G.A. No. 4134 of 1998, wherein it was held that the said Wind Turbine Generators belonged to the Appellant and an order was directed for Sale thereof. Admittedly, pursuant to the order of the appeal Court the Receiver went to take possession of such Turbines but he was unable to locate the same. An order was thence passed by the Appeal Court, inter alia, directing the 1st Respondent to identify the 5 Wind Turbines Generators which were the subject matter of the transactions between Plaintiff and the Defendent-Respondents which according to the letter had not been sold to third parties where after the Receiver was directed to take possession thereof and sell the same after advertising to the highest bidder. Admittedly, there advertisements were issued in respect thereof upon purported identification of the said Turbines by the 1st Respondent, two of which were installed in S.F. No. 173 and three in S.F. No. 172.

The Applicant herein admittedly was the highest bidder. By reason of the aforementioned order dated December 8, 1998, the sale was confirmed. The Receiver also issued a delivery order which initially contained a mistake but the same was subsequently rectified. Admittedly, the said Turbines were identified and identification marks were put thereon being W.T.G''s Nos. 15, 16, 17, 18 and 19. However, the Receiver did not take actual physical possession of the said Turbines nor did to make any inventory as regards the component parts thereof.

From the minutes of meeting held at the site office of N.E.P.C. Micon Ltd. on August 11, 1999, at 1.45 p.m. wherein the Manager and the learned Advocate of. the 1st Respondent as also the learned Advocates of the purchaser and the Plaintiff were present, it was found that three of the Turbines being W.T.G''s Nos. 15, 16 and 19 were not there at all and in respect of the other two it was found that certain component parts were missing.

Mr. Bimal Chatterjee, the learned Counsel appearing on behalf of the Appellant, inter alia, has drawn our attention to the order of the Division Bench of this Court dated December 8, 1998, wherein it was directed:

The sale in favour of the purchaser who has bid Rs. 10 lakhs for the five wind turbine generators stands confirmed. The Receiver shall execute the documents relating to the transfer of title to the wind turbine generators after receiving the entire purchase price which must be paid within two weeks from the date of this order being communicated to the purchaser by the Receiver. Upon receipt of the purchase price the Receiver shall deposit the same in a short term fixed deposit in a nationalised bank and subject to further orders of this Court. The purchaser will thereafter be entitled to take delivery of the five wind turbine generators sold by the Receiver from where ever they may be laying. In default of the purchaser making payment of the amount Rs. 10 lakhs or any portion thereof within the time specified, the confirmation of the sale in its favour will stand set aside and parties will be at liberty to mention for re-advertisement.

It was submitted that admittedly the Turbines were in working condition as would appear from the affidavit-in-opposition filed by N.E.P.C. Micon which is to the following effect:

The said generators have been in the same state for the last two years. Further the Learned Receiver in his minutes dated 25 May, 1998, records NEPC''s statement that the generators were in working condition when the same were disconnected from the grid. In the said minutes, the Learned Receiver has recorded NEPC''s willingness to hand-over the said generators to the Learned Receiver.

I further state that the minutes of the meeting of the learned Receiver dated 11 August, 1999, do not correctly record the actual state of affairs. The said minutes record that WTG''s 15, 16 and 19 were not there at all from the respective foundation. However, then the Learned Receiver incorrectly records that the Tower with Nacele Blade, Generator, Gear Box, Panel Board, Motors, Control System etc. were completely missing. In fact, the said were generators are lying in a dismantled condition and all the components are lying near the foundation in the same condition for the last two years. The other two generators are also lying in the same conditions for the last two years. None of the generators have been removed from the site. In this connection, hereto annexed and marked ''B'' is a copy of certificate issued by the Village Administrative Officer.

I say that the said minutes of the said meeting dated 11 August, 1999, were not made available to NEPC and as such NEPC could not record its protest or exception in respect of the said minutes earlier.

It further appears from the Minutes of Meeting dated August 11, 1999, that the Respondent herein claimed that the Turbines were not in working condition but were junk and not in standing position. It was noticed:

Mr. Selveraj on behalf of Jaguar Enterprises Pvt. Ltd. stated that service nothing is available on the 3 locations and in the other 2 locations only the Tower and damaged nacelle and blades are available, he worked not like to take delivery of the items. He also stated that whom he visited the site in November, 1998, and the five WTG''s Were in an erected condition with most of the parts and accessories in satisfactory condition.

At the instructions of the Receiver Photographs of the five locations were taken. Since the 5 WTG''s were in actual possession of NEPC Micon Ltd. within their own premises, it is for NEPC Micon to account for the missing WTG''s and parts and accessories to the Hon''ble Calcutta High Court.

In the facts and circumstances stated above, the Receiver is unable to give delivery of the 5 WTG''s to the purchaser. The Purchaser is directed to move the Hon''ble High Court at Calcutta in the matter for appropriate reliefs.

Another meeting was held at the site on. May 25, 1998, wherein it was noted that the Respondents herein were willing to handover the possession of the said 5 Wind Turbine Generators. However, a different stand was taken by the learned Counsel appearing on behalf of the Respondents to the effect that the said Turbines were not the subject matter of the hire purchase agreement.

Mr. Mitter, the learned Counsel appearing on behalf of the Plaintiff, inter alia, submitted that from various proceedings it would appear that the Respondents herein have taken recourse to practising fraus on this Court. This Court, the Learned Counsel pointed out that in several proceedings had made adverse comments against the conduct of the Respondents. According to the learned Counsel, as against a huge claim of the Plaintiff which would now come to about 7 Crores it had been able to get only Rs. 10 lakhs and even in respect thereof a huge expenditure had to be incurred by way of remuneration of the Receiver, costs of two advertisements (the cost of three advertisement was borne by the Respondent) as also the air fare and other expenses of the Receiver and the parties. In this situation, contends Mr. Mitter that no direction should be issued to refund the amount to the applicant herein as has been prayed for by him.

Mr. Ranjan Dev, the learned Counsel appearing on behalf, of the Respondents, N.E.P.C. Micon, has, inter alia, submitted that from the order of the Division Bench dated December 8, 1998, it would appear that the said Wind Turbine Generators were really junked. Our attention has further been drawn to the notice for sale which is at page 17 of the petition with a view to show that the properties would be sold as ''as is wide basis''. According to Mr. Dev, although in August, 1977, the said Wind Turbine Generators may be in working condition but by the time the sale had been taken place which was in the year 1999, the same had become junks.

Having considered the materials on record there cannot be any doubt whatsoever that the Respondents deliberately and intentionally removed 3 Wind Turbine Generators and also removed component parts of the two others. The conduct of the Respondents is reprehensible but the question which arises for consideration is as to whether this Court can direct the Respondents to put back the said wind Turbines so as to enable the applicant herein to receive delivery of the properties which were the subject matter of originals. Unfortunately the same cannot be directed primary because the Receiver appointed by this Court had failed to take actual physical possession of the property in question and prepare complete inventory in respect thereof. Keeping in view the passage of time, it may be impossible for the applicant herein to get delivery of the property which was actually sold to them although we fail to see any justification as to why 3 Wind Turbine Generator had been removed completely and parts of the other Turbines has also been removed. If any order is passed by us direct in the Respondents to replace the same, in our opinion, the same would be unworkable.

With a view to safe-guard the interest of the Plaintiff as far as possible this Court in various proceedings had passed various interim orders. The Applicant herein is a third party. The right of a Third Party to get back the amount which it had deposited for purchasing the said 5 Wind Turbine generators cannot be put in jeopardy. We therefore, are of the opinion that the infest of justice will be sub served if the Receiver is directed to hand-over a sum of Rs. 10 lakhs to the Applicant herein. The Respondent, keeping in view the aforementioned conduct, should also be directed to pay a consolidated sum including interest and costs on the amount deposited to the applicant herein which we assess at Rs. 2,00,000.00. The Defendant-Respondent shall also bear the costs of the Receiver and the Plaintiff/Appellant which might have been incurred in this regard.

We agree with Mr. Mitter that the Respondents herein has been taking steps to frustrate various orders passed by Court. Even at one point of time it sought for and obtained an injunction from the Madras High Court which was later on vacated. This aspect of the matter has been considered by us in another proceeding.

It would, therefore, be open to the Plaintiff-Appellant and/or the Receiver to file appropriate application before the appropriate Bench as against the Defendant.

This application is disposed of with the aforementioned directions.

M.H.S. Ansari, J.

I agree.

Application disposed of with directions.