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TMI Blog2008 (7) TMI 584X X X X Extracts X X X X X X X X Extracts X X X X ..... ssail the orders rejecting his application purported to have been filed under sections 476 and 457(3) of the Companies Act, 1956 read with Rule 338 of the Companies (Court) Rules, 1959, by the learned Single Judge as per the orders in C.A. No. 1118 of 2005 in C.P.No. 99 of 2000, dated 14-2-2007. 2. Heard Sri M.S. Ramachandra Rao, learned counsel appearing for the appellant and Mr. Anil Kumar, learned counsel appearing on behalf of the Official Liquidator. 3. The facts, which are necessary for disposal of the issue though appears to be an intrigues one but, which however, arises in all most in every liquidation proceedings and revolves around the various expressions used under the provisions of the Companies Act, which falls for consideration at different levels The appellant is the owner of the land to an extent of Ac. 7.14 guntas, which consists of the buildings and structures thereon, situated at Sanathnagar, Hyderabad. The said property was leased out initially to M/s. Hyderabad Allwyn by the then owners namely M/s. Alladin and Family under various registered lease deeds, some time in the year 1963. Later, M/s. Hyderabad Allwyn became a sick unit and in terms of the sche ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the estate of M/s. Allwyn Auto Limited at Rs. 58,050 per month towards rent, electricity and water charges, however, as far as the balance claim is concerned he rejected the same. Therefore, the appellant had filed the present application in terms of sections 476 and 457(3) of the Companies Act, 1956 read with rule 338 of the Companies (Court) Rules, 1959 for a direction to pay Rs. 16,83,450 representing the rental, electricity and water charges for a period from 17-7-2001 to 12-12-2003. 4. Contesting the said application and denying the claim, the Official Liquidator submitted a report mainly on the ground that the claim of the applicant is totally prematured one since all other claims are yet to be adjudicated as per the procedure contemplated under the law and as long as such steps are taken finally by settling and disposing the dividend etc., the appellant cannot make any claim. It was submitted that pursuance to the notice issued by the Official Liquidator on 8-8-2004, inviting claims, he received about thirty claims from unsecured and preferential creditors of the company including the claim of the Commercial Tax Department, however, no claim was made by any secured cred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... property for the period which was in the custody of the Official Liquidator after vesting of all the properties consequent to the orders of winding up of company would constitute as costs and expenses or would amount to a debt to be adjudicated along with other claims. 7A. There is not much dispute in regard to the facts. The appellant is the owner of the property, which was let out to the respondent-company which was wound up as per the orders of this Court on 17-7-2001 and the entire assets and property of the company vested in the Official Liquidator, and later part of the property was delivered to the appellant on 25-12-1998 and the balance extent was delivered as per the orders of the Company Court on 12-12-1993. Therefore, the claim now thus is for the period between 17-7-2001 to 12-12-2003, during which the property was in custody of the Official Liquidator after the order of winding up. In the report submitted before the learned Single Judge, the Official Liquidator tried to support his possession for the said period on the ground that he has to take steps in furtherance of winding up order, since the assets of the company had to be removed from the said property before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under clauses ( a ) and ( b ) applies to the debts. Therefore, while dealing with winding up of a company, it contemplates that the workmen dues and amounts due to secured creditors shall be paid in priority to all other debts. These two claims under clauses ( a ) and ( b ) are given a preference over all such other debts. The expression used is debts and therefore this certainly would not include nor can it take in the costs, charges and expenses incurred in the winding up for which the provision is specifically made under section 476 of the Act. Both the expressions debts vis-a-vis costs, charges and expenses are mutually exclusive and one does not include the other. Therefore it is not right to hold that the overriding provisions would make any difference, hence both cannot be treated on the same lines. It is not well-settled that the expression as used in a statutory provision should be given its plain meaning in the context in which they are found. Thus, we are of the view that having regard to the express distinct words used, which stand poles apart both under sections 476 and 529( a ) of the Companies Act, the other debts as mentioned to in section 529( a ) would not ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Court remaining after payment of the fees and expenses properly incurred in preserving, realizing or getting in the assets including, where the company has previously commenced to be wound up voluntarily, such remuneration, cost and expenses as the Court may allow to the liquidator in such voluntary winding up, shall, subject to any order of the Court and to the rights of secured creditors if any, be liable to the following payments which shall be made in the following order of priority, namely : First - the taxed costs of the petition, including the taxed costs of any person appearing on the petition, whose costs are allowed by the Courts; Next - the costs and expenses of any person who makes, or concurs in making, the Company s statement of affairs; Next - the necessary disbursements of the Official Liquidator other than expenses properly incurred in preserving, realizing or getting in the properties of the company; Next - the costs of any person properly employed by the Official Liquidator; Next - the fees to be credited to Government under section 451(2); Next - the actual out of pocket expenses necessarily incurred by the members of the Committee of inspect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was paid up to 24-6-1880. The rent was payable quarterly and the quarters rent for the 29-9-1880 was never paid. On 27-11-1880 a petition was presented for winding up of the company and on the same day a provisional liquidator was appointed with power to carry on the business of the company. On the 10th of December the winding up order was made and the provisional liquidator was appointed as Official Liquidator. The Official Liquidator continued to carry on the business of the company and for that purpose occupied the leasehold property which had been demised to the company. The landlord prayed to allow distress to be levied on the goods of the company. There was no controversy between the parties inter se that the rent that accrued before the liquidation should be a matter of proof and the subsequent rent a matter of full payment. Under those circumstances, it was held that the rent accrued due is that which ought to be proved for and the rent which cannot be proved for is that which ought to be paid in full. In the second judgment it was a case of payment of rates. A resolution was passed by the company for voluntary winding up on the 20-12-1882. The Liquidator appointed re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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