9911796707
TMI Blog1993 (10) TMI 231X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 per annum. On September 25, 1935, the lessor's interest in the said land was purchased by Brij Mohan Saraogi who settled the same upon a trust called the Brij Mohan Saraogi Charitable Trust. The company attorned to the trust as its tenant in respect of the said land. At the time when the winding up petition was filed the company had been in default of rent and consent terms had been arrived at whereunder the company had undertaken to pay the arrears. On August 13, 1981, the United Bank of India filed a suit against the company in liquidation after having obtained leave of the court under section 446 of the Companies Act, for a decree in the sum of Rs. 1,81,07,623.64 with interest up to July 31, 1981. Upon the application of the bank, the official liquidator was appointed receiver of the goods, stocks and assets hypothecated by the company in liquidation to the bank and all immovable property, including the said land and the factory premises which stood upon it, which had been mortgaged to the bank. On October 8, 1982, the High Court, in the winding up proceedings, directed the sale of the property and assets of the company in liquidation. The sale was to be effected by the offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ossession or occupation. Further, on account of arrears of rent a huge amount was due to the trust. Therefore, the said land was onerous. It may be mentioned that the bank had desired to pay to the trust the arrears of rent but the Division Bench declined to permit it to do so. The bank thereupon filed a special leave petition to appeal against the judgment and order of the Division Bench. There are several orders of this court in the proceedings which need to be referred to. Special leave to appeal was granted on January 27, 1986, and the judgment under appeal was stayed. On January 28, 1987, learned counsel appearing for the various workers' union of the company in liquidation said that the unions wanted to explore the possibility of taking over the interest of the trust with the object of running the mills of the company in liquidation. They stated that their clients would explore the possibility of buying the interest of the trust for about Rs. 30 lakhs. On April 30, 1987, the court passed an order which said, inter alia, this: "We have heard this matter in part today. In order to arrive at a proper adjustment of the rights of the parties judicially we direct that the land ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... him as a going concern. The monthly instalments as aforesaid will be deposited with the United Bank of India in the name of the official liquidator. Shyam Sundar Agarwal will not be liable for any past liability except in respect of the workers' dues. If the State of West Bengal has any rights on land about which there is no adjudication, this order will not prejudice such rights, if any. The appropriate authorities, namely, the Municipalities concerned and other authorities will render all assistance to the person concerned i.e., Shyam Sundar Agarwal for restoring all electricity and water connections on payment of such arrears which the official liquidator will ensure that such payment is made. The possession will be given to Shyam Sundar Agarwal after depositing Rs. 30 lakhs forthwith. In default of making any of the payments or in default of furnishing the bank guarantee or in default of payment of any two instalments in the manner indicated above or in not keeping the bank guarantee alive the official liquidator will take possession and the amount deposited will stand forfeited. In such a case or in case the mill is not started within a period of eight weeks from today the tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 15,00,000 shall be deposited with the Registry of this court by 4.00 p.m. tomorrow, i.e., October 22, 1992 ; (b)A further sum of Rs. 70,00,000 (either by way of demand draft or cash) to be deposited with the Registry of this court on or before December 31, 1992. Balance amount of Rs. 98,00,000 would be paid together with interest due on the total amount Rs. 1,98,00,000 at 15% per annum with effect from January 1, 1989, in 12 equal monthly installments. Each installment shall be deposited before the end of the month, i.e., the first installment shall be paid on or before January 31, 1993, and all subsequent installments in similar manner. We accept the undertaking given to this court which we have reproduced above. We further direct that the amount of Rs. 1,98,00,000 with interest shall be paid in terms of the above undertaking within the time specified in the undertaking. Simply because one of the directors (contemners) has given the undertaking, it would not mean that the other contemners or the directors have been discharged from their liability. They shall equally remain responsible personally as well as in their capacity as the directors of the company to discharge their l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the trust would be amply recompensed if it received as compensation for the disposal of its rights in the said land and for arrears of rent the sum of Rs. 10 lakhs from the official liquidator out of the funds of the company in liquidation. The trust having already received the amount of Rs. 7.50 lakhs pursuant to the order dated April 30, 1987, we shall now direct the official liquidator to pay to the trust the balance amount of Rs. 2.50 lakhs within 12 weeks from today in full and final settlement of the trust's claims against the company in liquidation of whatsoever nature in respect of the said land. While the aforesaid direction will dispose of the appeal, we would like to say, having heard counsel on the merits of the appeal, that we are not satisfied that the Division Bench appreciated the purpose of the provisions of section 535 of the Companies Act. Thereunder, the High Court may give leave to the official liquidator to disclaim land of any tenure which is part of the property of the company in liquidation if it is burdened with onerous covenants, The intention of section 535 is to protect the creditors of the company in liquidation and not mulct them by reason of onero ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of Rs. 1 crore 98 lakhs having been paid, what this really boils down to is whether Triputi should be made liable to pay interest at the rate of 15 per cent. per annum thereon. In our view, the complete answer to Triputi's allegation in regard to the failure of the official liquidator to hand over to it possession of certain properties which were sold to it, which, according to it, the company in liquidation did not even own, is contained in clause 2 of the terms and conditions of sale upon the basis of which the property and assets of the company in liquidation were sold by the official liquidator to Triputi under the orders of this court. Clause 2 reads thus: "2. The sale will be as per inventory list on 'as is where it is basis' and subject to the confirmation of the Hon'ble Supreme Court of India. The official liquidator shall not provide any guarantee and/or warranty in respect of the immovable properties and as to the quality, quantity or specification of the movable assets. The intending purchaser must satisfy themselves in all respects as regards the movable and immovable assets, as to their title, encumbrances, area, boundary, description, quality, quantity, and volum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iputi paid the sum of Rs. 1 crore 98 lakhs ; that itself makes the payment of interest thereon appropriate. Coupled therewith is the undertaking aforementioned. We are, therefore, of the view that Triputi must pay interest upon the amount of Rs. 1 crore 98 lakhs at the rate of 15% per annum from January 1, 1989, till payment. Such payment shall be made within 12 weeks from today. We make it clear that in the event that the amount of interest as aforementioned is not paid within 12 weeks from today, it shall be open to one or more of the aggrieved parties to take appropriate proceedings against Triputi and its directors. Civil Appeal No. 405 of 1986 is disposed of with the following direction: The judgment and order under appeal is set aside. The official liquidator shall pay to the Brij Mohan Saraogi Charitable Trust and the trust shall receive the sum of Rs. 10 lakhs out of the funds of the company in liquidation in full and final settlement of its claims against the company in liquidation of whatsoever nature in respect of the said land. The sum of Rs. 7.50 lakhs having already been received by the trust pursuant to this court's order dated April 30, 1987, the official liquidato ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
