9911796707
TMI Blog2004 (3) TMI 438X X X X Extracts X X X X X X X X Extracts X X X X ..... the commencement or continuation of any suit or proceeding against the Company and its promoters for recovery of any sums or enforcement of security with respect to claims by the creditors as set out in Exhibit C to the affidavit in support of this Judge s Summons and the prosecution or continuation of the suits or proceedings, a list whereof is at Exhibit C to the affidavit in support of the Judge s Summons; ( b )that pending the hearing and final disposal of this Company Application and the consideration of the Scheme of Compromise with or without modification, proposed by Nielcon Limited with its secured creditors/statutory creditors and unsecured creditors, this Hon ble Court be pleased to grant stay of the commencement or continuation of any suit or proceeding against the Company and its promoters for the recovery of any sums and enforcement of any security with respect to the claims by any of the creditors as set out in Exhibits C to the affidavit in support of the Judge s Summons and the prosecution or continuation of the suits and proceedings a list whereof is annexed at Exhibit C to the affidavit in support of the Judge s Summons; ( c )for adinterim relief ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or in the amount of about Rs. 4 crores along with the interest accrued thereon, in the aggregate, a sum of about Rs. 7.6 crores, is supporting the proposed schemes. It is relevant to note that counsel appearing for the workers Union whose claim is in the amount of about Rs. 2 crores, has also supported the proposed scheme. 5. Insofar as Maharashtra Apex Corporation Ltd. is concerned, it is agreed that it is having only second charge over the property of the company in liquidation. 6. It is not in dispute that certain proceedings have been filed before the Debts Recovery Tribunal, Mumbai, against the company in liquidation and the same are stated to be pending. In the said proceedings, the Debts Recovery Tribunal has directed that the property of the company in liquidation be sold so as to secure the dues of the petitioners therein. That order has not been challenged so far, which was passed on 11th December, 2003. Pursuant to that order, procedure for sale of the said property has already been concluded and it is agreed between the parties that the Debts Recovery Tribunal has confirmed that sale on 10-3-2004. And, consequent to that, the entire consideration has since been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iability of the company in the proposed scheme. This argument was controverted by the counsel for the applicant by relying on the averments made in the affidavit in support of the company application Ldg. No. 152/2004. However, to my mind, such averment in the affidavit is of no consequence because, it is common ground that no clear statement has been made in the proposed scheme as propounded by the applicant and placed on record before this court, regarding the statutory liability. As mentioned earlier, the Government of Maharashtra has appeared before this court placing on record that it has a claim of over Rs. 35 lakhs due and payable by the company in liquidation towards sales tax dues, which is obviously a statutory liability. So understood, there is substance in the grievance made on behalf of the first set of secured creditors that the scheme as propounded by the applicant is not bona fide and lacks material details. 9. It is argued on behalf of the Bank of India, that the Bank of India and the United Western Bank are the secured creditors and the United Western Bank has already got a decree in relation to its claim. The said decree, however, recognises the fact that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as presented before this court does not disclose the latest financial position of the company. The audited accounts of the company produced are for the assessment year 1997-98. With regard to the latter period the applicant has referred to unaudited accounts ( i.e. after April, 1998 till November, 1998). Reliance was placed by the counsel for the first set of secured creditors on the decision in Auto Steering India (P.) Ltd., In re [1977] 47 Comp. Cas. 257 (Delhi), to buttress the argument that disclosure of the latest financial position of the company and all other material facts is essential, for grant of reliefs under section 391(2) of the Companies Act. Indeed, the stage of sanction of the scheme has not arisen in the present case, but the fact remains that material details are not disclosed in the proposed scheme as propounded at the instance of the applicant, which finding is already arrived at earlier. 12. It is lastly argued on behalf of the first set of secured creditors that the Debts Recovery Tribunal has exclusive jurisdiction to adjudicate liability of debtor. Reliance is placed on the recent decision of the Apex Court in the case of Allahabad Bank v. Cana ..... X X X X Extracts X X X X X X X X Extracts X X X X
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