1992 (1) TMI 353 - HC - Companies Law

Summary

Issues Involved:
1. Availability of remedy under Section 29 of the State Financial Corporations Act to Karnataka State Financial Corporation (KSFC).
2. Right of the official liquidator to realize workmen's dues under Sections 529 and 529A of the Companies Act.
3. Validity of KSFC's possession and sale of the company's assets post winding-up petition.
4. Enforcement of security by KSFC amidst multiple secured creditors.
5. Maintainability of the application under Section 446 read with Section 537 of the Companies Act without debt determination.

Issue-wise Detailed Analysis:

1. Availability of Remedy under Section 29 of the State Financial Corporations Act to KSFC:
The court examined whether KSFC could invoke Section 29 of the State Financial Corporations Act after the company entered liquidation. It was determined that a company does not cease to be an industrial concern under the State Financial Corporations Act merely because it is in liquidation. The court noted that KSFC had taken possession of the company's assets before the winding-up order, which was undisputed. Therefore, KSFC retained the right to enforce its security under Section 29.

2. Right of the Official Liquidator to Realize Workmen's Dues under Sections 529 and 529A of the Companies Act:
The court discussed the amendments to Sections 529 and 529A, which introduced a pari passu charge on secured creditors' securities for workmen's dues. The liquidator is entitled to enforce this charge. However, the court clarified that these provisions do not prevent a secured creditor from standing outside the winding-up process to realize their security, provided they account for workmen's dues. KSFC's undertaking to pay workmen's dues allowed it to proceed with the sale of assets.

3. Validity of KSFC's Possession and Sale of the Company's Assets Post Winding-up Petition:
The court acknowledged that KSFC had taken possession of the company's assets before the winding-up order. Under Section 537 of the Companies Act, any attachment or sale without court leave post-winding-up petition is void. However, since KSFC had possession before the winding-up order and was allowed to proceed with the sale by the company court, the sale was deemed valid.

4. Enforcement of Security by KSFC Amidst Multiple Secured Creditors:
The court addressed the concern that KSFC, as one of the multiple secured creditors, could not enforce its security independently. It was established that a secured creditor could stand outside the winding-up process to realize their security, even if there are other secured creditors. The court found no violation of Section 531 of the Companies Act by KSFC acting alone, as it had taken possession lawfully and agreed to pay workmen's dues.

5. Maintainability of the Application under Section 446 read with Section 537 of the Companies Act without Debt Determination:
The court examined the maintainability of KSFC's application under Sections 446 and 537. It concluded that the company court has broad jurisdiction under Section 446(2)(b) to entertain claims for and against the company, including those by secured creditors. The determination of debts was not a prerequisite for the application's maintainability, as the court's jurisdiction encompasses a wide range of matters concerning the company in liquidation.

Conclusion:
The court dismissed the appeal, affirming the company court's order allowing KSFC to stand outside the winding-up proceedings and sell the company's assets under Section 29 of the State Financial Corporations Act, subject to the payment of workmen's dues. This decision was found to be in accordance with the amended Sections 529 and 529A of the Companies Act and relevant provisions of the State Financial Corporations Act. The appeal was dismissed without costs.