9911796707
TMI Blog2008 (3) TMI 486X X X X Extracts X X X X X X X X Extracts X X X X ..... quidation, the Official Liquidator may simultaneously ensure that the assets are put up for sale forthwith by following necessary procedure; In cases where the secured creditors of any company have instituted recovery proceedings before the DRT, the Official Liquidator shall forthwith move the concerned DRT praying for sale of the assets of the company and to invest the sale proceeds in suitable fixed deposit scheme to derive best returns thereon, which amount can be disbursed subject to such orders to be passed by the competent Court; Copy of this order be forwarded forthwith to the Secretary, Ministry of Company Affairs, Government of India for information and taking necessary action as may be advised in the light of observations made hereinbefore. - COMPANY APPLICATION NOS. 483 OF 2005, 993 OF 2006, 512, 614, 615, 738, 748, 861, 1007 AND 1009 OF 2007, 100 AND 101 OF 2008 IN COMPANY PETITION NOS. 382 OF 1996, 560 OF 1998 AND 1125 OF 2001 - - - Dated:- 5-3-2008 - A.M. KHANWILKAR, J. C.N. Mehta, Mrs. Shakuntala Joshi and Mrs. Molina P. Thakur for the Applicant. Vishwajit P. Sawant for the Official Liquidator. S. Ramakanta for the Deputy Official Liquida ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at behalf. One of the suggestion made by the applicants is that the Official Liquidator can release their payment from and out of the Common Fund available with the Official Liquidator. 4. As the issue raised in the present set of applications was overlapping and recurring one, I thought it appropriate to hear all the applications together so as to understand the gravity of the overall situation in the office of the Official Liquidator. In terms of orders passed from time to time, the Official Liquidator was called upon to furnish requisite information. That information has now been compiled by the Official Liquidator and placed on record along with his affidavit dated 26-2-2008. 5. It is seen that the Official Liquidator has framed a panel of security agencies. Until 20-1-2003, six security agencies were empanelled - whose services were availed from time to time by the Official Liquidator for different assignments. The panel was expanded on 20-1-2003 by including 15 additional security agencies, and by subsequent report dated 28-1-2007 further three security agencies have been empanelled. In other words, as of now, in all 24 security agencies are empanelled, whose services ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S.M. Pandey 5A. From the tabular chart made available to the Court which is placed on record, it is also noticed that the outstanding dues claimed in the present set of applications is in the aggregate amount of Rs. 2,60,05,090; and similar claim pending before the Official Liquidator in relation to other assignments in 90 applications, is to the extent of Rs. 9,53,91,499. In other words, the aggregate amount payable by the Official Liquidator to ten different security agencies is almost over Rs. 12.50 crores. 6. Notably, four security agencies have been engaged, in around 80 assignments out of 104 assignments by the Official Liquidator. The total outstanding amount receivable by those four agencies would far exceed over Rs. 11 crores. 7. Naturally, the question is why should these agencies suffer such hegemony of the Official Liquidator who was not paying the colossal amount for the period ranging from "1995" onwards, as can be discerned from the chart compiled by the Official Liquidator placed on record. At the outset, I would think it appropriate to append the information furnished by the Official Liquidator in tabular chart to this order, which be treated as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Liquidator may be handicapped on account of some other legal proceedings pending and/or stay orders passed by Court of competent jurisdiction or the superior Court. However, if no such impediment operates, there can be no tangible reason to justify the inaction on the part of the Official Liquidator in not disposing all the assets of the company in liquidation in right earnest and expeditiously. As long as the assets, movable or immovable as the case may be, are not disposed of, naturally, for preserving the same, the Official Liquidator is required to depend on the services of the security agency, which services are availed for consideration. Suffice it to observe that the delay in disposal of the assets of the company in liquidation would necessarily result in causing loss to the stakeholders in the company in liquidation, and at the same time result in distributing largesse to the security agencies for prolonged period, avoidable though. 10. Thus understood, and keeping in mind the facts and figures now revealed in the tabular chart furnished by the Official Liquidator, it would inevitably raise serious doubt about some unholy nexus with the operating security agencies enga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oceed against them by way of departmental action including to recover the amount of loss or damage and for criminal action, if necessary, indeed, if it is a case of criminal conspiracy, then all concerned including the managers and authorised officers of the security agencies, should also be proceeded with. 12. Be that as it may, from the materials on record, I have no hesitation in taking the view that the relief claimed by the applicants is not innocuous and innocent. There is much more than what meets the eyes. Nevertheless, I will have to consider the claim of the applicants. 13. The question is whether the claim of the security agency will have to be accepted as it is or placed under the scanner in the context of the consistent trend emerging from the record about the act of commission and omission of the Official Liquidator in not ensuring that only proper number security guards are deployed on the site where the security agency has been appointed; and that no plausible explanation is forthcoming for not expediting the sale of the assets of the company for unduly long time resulting in continued deployment of security services. All these aspects will have to be consid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le Racks Size: 2 4 7' 13 6 2. Tube Light with Fittings 10 7 3. Monitor Screens 6 12 4. Wooden Tables Size : 2 21/2" 4' 2 20 5. Empty Steel Box 1 21 6. Printer Parts in Dismantled Condition 0 22 Room No. 3 1. Slotted Angle Racks Size : 7' 2' 4' 5 6 2. Wooden Tables Size : 2 4 2' 7 4 3. Sofa (Side) 4 18,( ii ) 4. Double Sofa 1 18,( iii ) 5. Wooden Racks Size : 3 1-1/2 6 9 23 6. Water Filter 1 24 7. Plastic Boxes with Assembly Components, Screws etc. Size : 10" 5" 4" 25 25 8. Tube light with Fittings 5 7 Room No. 4 1. Screen Monitor 8 12 2. Wooden Tables 6 4 3. Steel Frames Size: 43" 49" Lot 26 4. Slotted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. For protecting goods of such insignificant value, no prudent person would venture to engage security agency to the extent of three guards per shift and two supervisors for all the three shifts. That is incomprehensible. Notably, such heavy security arrangement was continued for almost five years from 1998 till December 2003. I have no hesitation in taking the view that the dispensation provided for protecting the movable and immovable assets of the company in liquidation was far excessive and unwarranted. As a matter of fact, the deployment of one security guard per shift would have been more than sufficient in the fact situation of this case. That is so because, the nature of movable items were such that all the items could have been arranged in one room to be kept under lock and key. Indisputably, the property in question is situated in a well developed and busy industrial estate. It is not as if the property was situated in remote part for which heavy security of the kind was necessary. ( f )The argument of the applicant that the applicant cannot be blamed for having deployed such heavy security - as that was the requirement specified by the Official Liquidator himself, doe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 063 which is approximately 817 square yards. The movable assets have been inventorised by the Official Liquidator in the report which reads thus : Sr. Nos. Description Approx Qty. First Floor 1. M.S. Cupboard standard size 12 Nos. 2. Assorted Nylon netted chairs 27 Nos. 3. Table with three drawers 19 4. Assorted telephone instruments 9 5. Wooden Chair 17 6. Conference Wooden Table 1 7. A.C. (Scrap) 1 8. Godrej Refrigerator 2 9. Manual Cutting Machine 1 10. Cushion Sofa Salvage 2 11. Auto Clave - Make Industrial Corpn. (P.) Ltd. 1 12. Godown 13. Auto Clave-Make Sunvic (U.K.) 1 14. Auto Clave-Make Industrial Corpn. (P.) Ltd. 1 Ground Floor 15. Assorted Machinery - Make The United Engineering Co. Serial GK 4/18 1 16. Worki ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aggregate sum of Rs. 12,18,938.67 ps. ( b )The applicant claims to have appointed three security guards per shift and one supervisor round the clock. Indeed, the Official Liquidator has taken approval of the Company Court for deploying three guards per shift and one supervisor for all the three shifts. The question is whether the recommendation of appointment of heavy security in relation to the property of the company in liquidation as referred to above was warranted? I will advert to this aspect a little later. ( c )It is not in dispute that the movable properties referred to in the inventory belonging to the company in liquidation have been sold on 4-6-2003. The question is whether it was necessary for the Official Liquidator to permit deployment of three security guards per shift and one supervisor for all the three shifts for the nature of property which was required to be protected. Significantly, when the movables were disposed of in June 2003, the value realised by the Official Liquidator is stated to be only Rs. 3,02,000. No prudent person would venture to engage security agency to the extent of three guards per shift and one supervisor for all the three shifts to pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dering the claim of the applicant in terms of this order shall give opportunity to the secured creditor to establish the position that during the relevant period in fact no security guards were deployed on the site. That aspect will be considered on its own merits. In the event the case made out by the creditors is established, it would necessarily follow that the applicant will not be entitled to any payment during such period. In that case, the Official Liquidator will have to pass consequential order for recovery of commensurate amount from the applicant, if any. 16. Re.: Company Application No. 861 of 2007 ( a )The company in liquidation was ordered to be wound up in terms of order dated 25-11-1998. The Official Liquidator took over possession of the immovable and movable assets of the company in liquidation on 15-6-1999. It is also seen that the applicant security agency was appointed to safeguard the assets of the company in liquidation which were taken over by the Official Liquidator on the same day i.e. on 15-6-1999. The immovable property is a freehold land being a plot admeasuring 5257.81 sq. mts. in Village Oshiwara, South Salsette bearing CTS Nos. 14, H. No. 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nual Bottle Machine approx. 1 MT Single 5 Double Head approx. 1.5 MT. 6 14. Work Shop ( a ) Shaping Machine 24" stroke without motor 1 ( b ) C/Lathe 4' bed without motor 1 ( c ) C/Lathe 8' flat bed without motor 1 C/Lathe 8' flat bed with motor 1 ( d ) C/Lathe 10' Gap Bed with motor 1 ( e ) Slot Angle Racks 6' 8' 4 Slot Angle Racks 8 4' 2 ( f ) Radial Drill 1 ( g ) Slotted Angle Rack Lot approx. 300 kgs. 15. Glass Furnace Condemned weight of steel approx. 6.7 MT broken scrap chimney Air Receiver 1 Steel Structural shed approx. 6.7 MT 16. Engine Scrap for D.G. approx. 1.5 MT 17. M.S Tank O/H 3' 4' 6' 1 M.S. Tank 3 3 3 1 18. F.O. Tanks 6' 6' 4' HT. 4 19. O/H conveyor Scrap approx. 2 MT 1 Sr. Nos. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his application is whether it was essential to provide such heavy security to protect the stated movable and immovable assets of the company in liquidation. From the valuation report as referred to above, it is obvious that the movables were lying in enclosed structure and not exposed to outsiders as such. Besides, it is seen that the entire property was bounded by compound wall. As a result, access to the property was obviously not so easy. To protect such property, even if it was spread out to the extent of about four acres, having regard to the location of the property and the surrounding circumstances, obviously it cannot be said that it was imperative to deploy seven security guards for first and second shifts and eight security guards in the night shift with one supervisor in each shift. As aforesaid, the value of movables that are sold could fetch only Rs. 16.50 lakhs whereas the security charges claimed by the applicant is to the extent of Rs. 63 lakhs and above up to December 2007 since the date of appointment on 15-6-1999. In my opinion, the Official Liquidator will have to adjudicate the claim of the applicant agency afresh keeping in mind all the attending circumstances ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmit the other stakeholders to participate in the proceedings who would be free to place on record the irregularities committed by the security agency as is alleged by them, amongst others, by the Workers Union, in their letter dated 2-2-2008. Besides the workers union, the Official Liquidator will also permit the secured creditors of the company in liquidation as also the ex-director to take a stand as to the justification and necessity of the arrangement provided by the applicant as is claimed by the applicant. 17. Re. : Company Application No. 483 of 2005 ( a )The winding up order was passed on 10-4-2007. However, much earlier to that, by order dated 18-7-1998, the Provisional Liquidator was appointed to take over possession of assets and properties of the company in liquidation. The Official Liquidator, accordingly, took over possession of the immovable and movable assets of the company in liquidation on 24-8-1998. On the same day, the Official Liquidator appointed the applicant as security agency to safeguard the assets of the company in liquidation. The applicant deployed three security guards per shift ( i.e., Nine per day). The inventory report discloses the nature ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Press Machine with drive unit (1 No.) Spindle roll wrap machine for textile or wire processing machine with drive unit (1 No.) Yarn on wire winding attachment. Hexagonal drum, horizontal position with drive unit (2 Nos.) Set of other attachment, bobbin stand with drive units pulley sets, guide rails, winding table, texturing machine, accessories, spares etc., (Lumpsum) Rivet Making Machine (1 No.) Centre Lathe - Mysore Kirloskar make, 5' bed, 8' c/c with butting attachment (1 No.) Buffing Machine manufactured by M/s. Vijay Machinery 2000 rpm 1-5 HP motor (1 No.) Cooling Tower - Natural draft, G.I. Loures metal frame without spray nozzles etc., (1 No.) Sr. Nos. Particulars Qty. Nos. Machineries accessories stack in cartons (boxes) - 4 Nos. (Lumpsum) Chemical Doser Vessel - Wanson make - 5 Kg/sq.cm (1 No.) estal Drill Machine small size suitable for 1/2" drill (1 No.) Rivet making machine manufactured by Kaise Maschien ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... access to the industrial area was found to be easy. Be that as it may, the movable assets of the company in liquidation were eventually sold only on 14-2-2008. Obviously, therefore, the security arrangement was required to be continued for all these years from 1998. Significantly, the number of security guards were reduced by the applicant to only three guards i.e., one guard per shift with effect from 1-10-2005. Indeed, one of the consideration for doing so was non-payment of the bills raised from time to time. The fact remains that since October 2005 the applicant has been able to protect both, the movable as well as immovable assets of the company in liquidation by providing only one guard per shift basis. No tangible reason is forthcoming as to why the applicant insisted for providing three security guards per shift ( i.e., Nine guards per day) for the same property. Thus understood, the claim of the applicant for charges of three security guards per shift basis is unacceptable. Significantly, the movable assets which have been sold on 14-2-2008 have fetched only Rs. 14.50 lakhs, as against the outstanding claim of the applicant which has mounted to Rs. 28 lakh and odd with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tated to be Rs. 20,63,615.85 ps. ( b )The counsel for the applicant would contend that by virtue of section 457(2A) of the Companies Act, it is the duty of the Official Liquidator to appoint security guards to protect the property of the company whereof custody is taken and to record an inventory of the assets in consultation with secured creditors after giving them notice; appoint valuer, chartered surveyors or chartered accountant, as the case may be, to assess the value of the company s assets within specified time and to take steps to invite bids for sale of the assets of the company within fifteen days from the date of receipt of valuation report. Relying on this provision it was argued that the security agency cannot be blamed for having engaged excess number of security guards to protect the property in question. According to the applicant, it is the prerogative of the Official Liquidator to suggest the number of security guards to be engaged to protect the property in question and the security agency is only required to abide by such directions. The Official Liquidator may indicate the number of security guards to be deployed in consultation with the secured creditors inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e relevant time an objection is registered from any quarter. If it is a case of connivance of the officials in the office of the Official Liquidator, the fact that the Court has already over the arrangement, will make no difference as it will be a case of fraud played upon the Court. That is a matter which needs to be examined by the appropriate authority keeping in mind observations made in this decision. ( e )Insofar as present applicant is concerned, the claim of the applicant that deployment of three guards per shift was essential, will have to be accepted for the simple reason that the value of the movable assets has been notified as Rs. 3.85 crores. To preserve such valuable property, there can be no difficulty in accepting the arrangement already made by the Official Liquidator to be reasonable and neces- sary in the fact situation of this application. That, however, is not the position in every other case before me to which I have already adverted to at the appropriate place. ( f )The argument of the applicant that the security agency has no option but to continue to provide security arrangement irrespective of not receiving any payment from the Official Liquidator, how ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rejected. This is so because there is not even a single instance placed before me to indicate that in spite of such request having been made by the security agency the concerned agency was denied such relief. On the other hand, atleast in couple of applications, I have permitted certain security agencies to discontinue the arrangement as soon as other suitable arrangement were to be provided by the Official Liquidator and which liberty has already been availed by this very applicant in respect of this very assignment. Suffice it to observe that if the security agencies were so willing, they could have moved the Court for appropriate directions with immediate dispatch. No plausible explanation is forthcoming as to what prevented the security agencies to wait for couple of years, in some cases almost nine years, to apply to the Court for suitable directions in spite of the fact that no payment was being received by them in respect of the stated services continuously offered by them to protect and preserve the assets of the company in liquidation. ( i )Needless to observe that the security agency would be free to walk out from the arrangement on the date notified to the Official Li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quidation is stated to be plot admeasuring 5,673.60 square meters situate at CTS Nos.687 and 662/1, Kurla-Andheri Road, Saki Naka, Andheri (E), Mumbai-72 on the main road in an industrial estate (opposite Orkay Mills) where there are other factory units. The factory premises of the company in liquidation is about 200 mtrs. away from the main road. Besides the immovable property, the Official Liquidator took over possession of the movable assets as noted in the valuer s report, approximate valuation whereof is stated to be around Rs. 14 lakhs. The particulars of movable assets furnished in the valuer s report reads thus :- Sr. Nos. Items Qty. Location 1. Vehicles with Engines and gear box Models - BMW, Mercedez, Tempo etc. 6 Nos. In the compound MAS 4302 MHO-3902 MMS-30455 MAS-5987 MH01-2477 MMG-9455 etc. 2. Only Car bodies 15 Nos. In the compound and in the rear shed 3. F.G. Boats 40 Seaters 1 In the comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Division Hyderabad 500 018. 21. Nos single stage 7.5 HP Centrifugal pump 3 Nos. Near Transformer Boat 22. Fire Extinguisher - Scatter all over place - 11 Nos. Lot Scrap various places Small machine/gear box One Car Engines Engine Block-2 23. Winding machines 8'-0" 10 0" long-3 (conical drum) 3 Nos. 24. One sightening machine having 3.0 HP electrical motor/pulley (on 1st floor) One 25. Service Lot Electrical Cable installed V/G and above panel and on each floor. Pipe line-air,water, chemical etc. on % basis of the total plant layout. ( b )After the Official Liquidator took over possession, he simultaneously appointed the applicant to provide security to the movable and immovable assets of the company in liquidation with effect from 24-5-1999 itself. Initially ten guards and one supervisor per shift totalling to 30 guards and three supervisors round "O" clock arrangement was provided. Justification for providing ten gu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to its logical end. That has not happened in the present case which is evident from the events recorded earlier. The Official Liquidator went slow in the matter till January 2002 when he submitted the report for the first time and thereafter took almost eight months to resubmit further report to invite necessary directions from the Company Court. No justification for this lapse is forthcoming. This is notwithstanding the obligation of the Official Liquidator to take steps within a reasonable time for sale of assets (atleast movable assets could have been completed within a reasonable time), if not within the statutory period provided under section 457(2A) of the Companies Act. However, that happened only in 2003 and that delay is cited as justification not only for providing higher number of security guards round "O" clock to preserve the assets of company in liquidation but also for the charges to provide such security arrangement, which has far exceeded the sale proceeds of the movable assets. ( d )Moreover, it is nobody s case that there was no compound wall to the factory premises or that the movables were lying in open space without a compound wall. The factory premises coul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ency of the company petition, Provisional Liquidator was appointed on 26-4-1999. The Provisional Liquidator took over possession of the assets of the company in liquidation on 29-11-1999 and engaged services of the applicant to provide security to 19 plots belonging to the company in liquidation situated at Village Collam, Tal. Sanghum, Goa admeasuring around 28,330.04 sq.mtrs. area. The security arrangement, however, was limited to one security guard per shift for all these plots in respect of first and second shifts; whereas, two security guards were deployed for night shift. No arrangement for supervisor was provided by the security agency. Going by the number of security guards deployed to preserve such huge property, the same is obviously just and proper number of security guards. ( b )However, the question that remains to be considered is whether the Official Liquidator has committed any lapse in not selling the said immovable properties in respect of which security arrangement was required to be deployed since December 1999. It appears that an attempt was made by the Official Liquidator to sell the properties in question only in 2005. However, that did not fructify on acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... operties situate at Ratnagiri which are hardly about four and eight acres respectively, it is incomprehensible that two guards per shift were necessary. Besides, the question still remains is as to why the Official Liquidator has failed to take steps to sell the properties in question since 2001. Atleast properties at Ratnagiri, Shirpur and Dahivad, possession whereof has been taken as back as in October 2001, no explanation is forthcoming as to why steps as required by the provisions of Companies Act, within reasonable time have not been taken by the Official Liquidator. There is nothing to indicate that stay from any Court was operating in relation to such sale. ( b )As noted earlier, the inevitable conclusion is that the delay in sale has resulted in piling of the security charges. The claim of the applicant in relation to providing security to five properties has piled up to the extent of about 45 lakhs since October, 2001. If the properties were to be sold with promptitude, there would have been no reason to continue the security arrangement for such a long period. All these aspects will have to be addressed in appropriate enquiry to ascertain whether it is an act of commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e property even when there was no stay order operating in relation to such properties. All these matters will have to be enquired into at the appropriate level and taken to its logical end. ( b )The argument of the applicant that UCO Bank has already agreed to take the burden of security charges and the sale of assets has been at the instance of UCO Bank, the applicant be paid the out-standing dues from the said sale proceeds, does not commend to me. The counsel for the Official Liquidator points out that UCO Bank registered protest and disputed the factum of services offered by the applicant agency and liability to pay any amount for such services. All these aspects will have to be considered by the Official Liquidator while adjudicating the claim of the applicant after giving notice to the UCO Bank as well as to the other secured creditors. ( c )The counsel for the applicant would contend that the number of security guards to be appointed has been ratified by the Court. That argument does not commend to me. Similar contention has already been answered by me in the earlier part of this judgment. 23. Re.: Company Application No. 101 of 2008 ( a ) As far as Company Appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . If so, there is no question of any security service offered atleast since February, 2005. It necessarily follows that the claim of the applicant of having provided security even after February, 2005 becomes doubtful. At any rate, no explanation is forthcoming as to why the security guards were continued in spite of undertaking of the owner which has been accepted by the Official Liquidator in February, 2005. I am informed that the security agency has been discontinued with effect from 31-5-2005. The movables of the company in liquidation are presently in the custody of the owners of the immovable property. Taking over all view of the matter, the appropriate course is to direct the Official Liquidator to examine the claim of the applicant keeping in mind the observations made in the earlier part of this judgment and submit report to this Court for such directions as may be advised. 24. Re.: Company Application No. 100 of 2008 ( a )The Official Liquidator has been appointed as Provisional Liquidator in terms of order dated 14-3-2000. The Official Liquidator took possession of the movable and immovable assets of the company in liquidation. The movable assets of the company c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial Liquidator ought to have called upon the secured creditor to deposit the security charges amount besides taking steps to sell the assets of the respondent company. The Official Liquidator shall take necessary steps in this behalf and submit report forthwith for seeking appropriate directions from the Court. 25. Re.: Company Application No. 1007 of 2007 ( a )The winding-up order was passed on 8-6-1994. Consequent thereto the Official Liquidator took over possession of the assets of the company in liquidation on 5-1-1999 and simultaneously appointed the applicant security agency to safeguard the immovable property at Village Usarli Khurd, Tal. Panvel, Distt. Raigad. Initially the applicant claims to have deployed two guards per shift i.e., six guards. However, the strength of guards was reduced to one guard per shift i.e., three guards per day with effect from 1-9-2005. Be that as it may, the total outstanding dues claimed by the applicant is in the sum of Rs. 9,04,551 payable on account of security charges with effect from 5-1-1999 till 31-12-2007. The reason why initially two security guards were appointed per shift from 1999 and which arrangement was continued till S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for such amount. The amount, however, be disbursed to the concerned security agency only after taking prior permission of the Court. 27. Insofar as companies in which there are no claims of secured creditors (about 16 in number), as indicated in the chart by the Official Liquidator, obviously the Official Liquidator will not be able to create funds to discharge the liability of the security agencies until the assets are sold in auction. 28. It is also noticed that out of 104 companies at least in respect of 60 companies, proceedings are pending before the Debts Recovery Tribunal at the instance of secured creditors. Obviously, so long as those proceedings are not finally terminated, the Official Liquidator will not be in a position to take any precipitative steps. However, the Official Liquidator in those cases may move the concerned Debts Recovery Tribunal so as to persuade the Tribunal to dispose of the assets of the company in liquidation so that sale proceeds can be invested to be made subject to the outcome of DRT proceedings. Until such time, the secured creditors at whose instance proceedings before the DRT are pending, should be made liable to pay proportionate se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to pay the due amount from and out of the Consolidated Funds. This argument clearly overlooks that the Consolidated Fund has been created under the Court s Order for a particular purpose. It is noticed that the Consolidated Fund was created in terms of order passed by the Company Judge on 9-11-1978 on the report of the Official Liquidator dated 7-11-1978. In the said report, the Official Liquidator had noted that as per the prevailing practice in the office of the Official Liquidator at the relevant time company staff were working as Senior Assistants in the General Cadre, though the Court had sanctioned 17 Assistants and whose services were engaged for effectuating the order of winding up in respect of different companies. The Official Liquidator was of the view that for logistical convenience it would be appropriate to create a consolidated fund to be formed by drawing required amounts from the accounts of various companies so that the salary of the staff employed by the Official Liquidator can be paid from the said fund. That suggestion was made as common staff was employed by the Official Liquidator to handle the liquidation proceedings of all the companies where winding up or ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
