2013 (10) TMI 1470 - HC - Companies Law

Summary

Issues Involved:
1. Whether the Official Liquidator should be discharged.
2. Compliance with statutory provisions, specifically the advertisement of the winding-up petition.
3. The interests and claims of various creditors and depositors.
4. The implications of the winding-up proceedings on ongoing litigation and financial settlements.

Summary:

1. Discharge of the Official Liquidator:
The applicant, IDBI Bank, sought the discharge of the Official Liquidator, arguing that all claims by depositors had been settled and no further claims were pending. The Court noted that the third respondent, the Chairman of the company, had settled claims of over 10,000 depositors using personal funds to avoid criminal prosecution. Despite these settlements, the Court found that other creditors, including banks, had not been paid, and the Official Liquidator had not invited claims from all creditors. Therefore, the Court concluded that the Official Liquidator could not be discharged solely based on the settlement with depositors.

2. Compliance with Statutory Provisions:
The Court scrutinized the statutory requirements for advertising the winding-up petition as per Rule 99 and Rule 24 of the Companies (Court) Rules, 1959. It was emphasized that the publication of advertisements is mandatory and failure to comply with this requirement by the petitioning creditor is fatal to the petition. The Court noted that no other creditor or contributory had come forward to prosecute the petition, and the third respondent had not offered to be substituted as the petitioner. Consequently, the Court held that the winding-up petition must be dismissed for non-compliance with the advertisement requirement.

3. Interests and Claims of Creditors:
The Court acknowledged that the winding-up proceedings are intended for the benefit of the entire body of creditors. However, it was highlighted that no other creditors, apart from depositors, had approached the Court during the 12-year pendency of the petition. The Court dismissed the argument that the petition could not be dismissed behind the creditors' backs, noting that the third respondent had settled claims of depositors to avoid criminal prosecution and not out of charity.

4. Implications on Ongoing Litigation and Financial Settlements:
The Court recognized that the applicant-bank's underlying motive was to perfect their title to a property involved in a previous transaction with the company-in-liquidation. The Court clarified that the dismissal of the winding-up petition would not automatically grant the applicant-bank title to the property, as their application for execution of the sale deed was pending before the Supreme Court. The Court also addressed the Official Liquidator's concern about the impact on other financial institutions and creditors, noting that the settlement of depositors' claims had already allowed unsecured creditors to score a march over others.

Conclusion:
The Court allowed the application of IDBI Bank, discharged the Official Liquidator, and dismissed the main company petition. The Official Liquidator was directed to return the funds to the company after deducting administrative expenses.