9911796707
TMI Blog1978 (1) TMI 133X X X X Extracts X X X X X X X X Extracts X X X X ..... at it is a secured claim. In fact, the official liquidator has used other language in the order, but this is the sum and substance and effect of the order. The present appeal is not concerned with the quantum of the claim, but with the nature of the claim. In other words, the appellant wants to be treated as a secured creditor having a preferential right over other creditors. The appellant relies on an agreement dated 19th December, 1967, entered into with the company which is reproduced in the grounds of appeal. It is also stated that this agreement created a mortgage/charge, which was registered under section 132 of the Companies Act, 1956. The winding-up order was passed on 18th November, 1968, which means that the agreement was entered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the official liquidator. The present case involves a very substantial amount and I would not like to decide a claim of this type in this manner. The next question is: can the appellant avail of any other remedy or is he to be left to a chance decision recorded one way or the other on the present material? At the same time, it may be recalled that the official liquidator has many rights such as the rights to challenge preferential payments or fraudulent payments or charges created otherwise than for good consideration as provided in sections 531, 531A and 532 and other sections. It would be most unsatisfactory if the official liquidator were to be deprived of his right to challenge a voluntary transfer under section 531A merely because he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idator. Firstly, it covers any suit or proceedings by or against the company. Hence, by mere application, the court can adjudicate a claim by the present appellant against the company; the claim being that he is a secured creditor and at the same time, the court can adjudicate a claim by the official liquidator that this claim is bad because it is not registered. It is bad only in the sense that it does not lead to any preference. At the same time, it can be said that the charge or mortgage is void under section 531A or any other provision that the official liquidator may be able to point out. Then the court can deal under sub-clause ( d ) with any question of priority or any question whatsoever whether of law or fact which arises in the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... moving an application under section 446(2), because in this case the dispute does not relate to the debt, but to the nature of the debt. The quantum of the debt being admitted, the appellant is free to move such an application, if so advised. To make matters clear, I would say that the effect of this order, subject to any application that may be filed under section 446(2), would be that the debt stands proved as found by the official liquidator which would be treated as an ordinary debt unless found to be preferential debt by the court when dealing with an application under section 446(2) of the Act. I may also say that I would myself have decided this question of priority in these proceedings if I could fairly have done so, but I feel tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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