9911796707
TMI Blog2012 (4) TMI 436X X X X Extracts X X X X X X X X Extracts X X X X ..... equent to the date of winding up order and the said amount is much more than the amount for which a direction has been sought for the direction as against respondent Nos. 1 and 2 to refund the same would not arise - the entire amount of Rs. 1,70,000/- in any event cannot be appropriated by the respondent. No. 4 alone to the detriment of any other claims of the secured creditors or employees which would have to be considered on a pari passu basis - a direction is issued to the fourth respondent to bear the advertisement expenses (not exceeding Rs. 10,000/-) for the Official Liquidator to invite claims from any persons who may have claims against the Company-in-liquidation. - COMPANY APPLICATION NO. 678 OF 2005, COMPANY PETITION NO. 70 OF 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4th respondent, who was a secured creditor of the Company-in-liquidation. The 3rd respondent herein is the purchaser of the movables. It is therefore contended on behalf of the applicant that the sale made on 29.03.1996, being contrary to the provisions of law, the amount of Rs. 1,70,000/- could not have been paid to the secured creditor by preferring one creditor over others. Hence, it is in that context the refund of said amount is sought. The balance of Rs. 85,000/- stated to have been retained by respondent Nos. 1 and 2 is the amount against which a direction has been sought against respondent Nos. 1 and 2. 4. The respondent Nos. 1 and 2 have filed their objection statement to the application. The sale made on 29.03.1996 is not dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rise. 5. In view of the contentions raised by the respondents, the matter had been set down for evidence. On behalf of the applicant, the assistant, working in the office of the Official Liquidator was examined by filing an affidavit and marking the documents, on which the applicant had relied. It is to be noticed that respondents have produced certain documents along with the objections. But, the same has not been formally marked in the evidence. Insofar as the contention put forth in the application, the notice issued by the Official Liquidator relating to the filing of the statement of affairs are marked as Ex-P1 to P3. The reply of the 1st respondent to the Official Liquidator is marked as Ex-P4 and P5. The basis on which the claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which has been recovered by respondent Nos. 1 and 2, the payment which has been made is to the secured creditor and the former employee of the Company-in-liquidation. 7. However, the said disbursement in a normal procedure is required to be made by the Official Liquidator, pursuant to the winding up and in any event, the respondent Nos. 1 and 2 could not have assumed that role. But, the fact of disbursement has to be noticed from the angle as to whether the payments made bona fide could be taken into consideration in the facts herein and in that regard, whether respondent Nos. 1 and 2 could be absolved from any direction being issued against them. In addition to the said payments which have been indicated, the challan of the Provident ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considering the fact that respondent Nos. 1 and 2 have paid amounts from their personal account even subsequent to the date of winding up order and the said amount is much more than the amount for which a direction has been sought for, I am of the opinion that the direction as against respondent Nos. 1 and 2 to refund the same would not arise. The question however is with regard to the amount which has been paid to the secured creditor amounting to a sum of Rs. 1,70,000/-. The said amount also is towards discharge of the liability of the Company-in-liquidation. In the peculiar facts of the instant case, as noticed, respondent Nos. 1 and 2 who are the erstwhile Directors have made subsequent payments and keeping this aspect in view, the cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the fourth respondent to bear the advertisement expenses (not exceeding Rs. 10,000/-) for the Official Liquidator to invite claims from any persons who may have claims against the Company-in-liquidation in terms of the rules. In the event of there being no other claims, the Official Liquidator could close the matter at that stage. However, if in the event of there being claims from any other secured creditor or the erstwhile employees of the Company-in-liquidation, at that stage, the Official Liquidator would have the liberty of approaching this Court for seeking appropriate directions against the fourth respondent. In that view of the matter, there need not be any specific order for refund of the amount as claimed in the instant applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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