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TMI Blog2013 (1) TMI 667X X X X Extracts X X X X X X X X Extracts X X X X ..... are before the Defaulters’ Committee, will now have the option of pursuing their claims before the OL in accordance with law. Consequently, the plea of NSEIL that its Defaulters’ Committee should be allowed to continue to be in possession and control of the deposits of Rs. 1.10 crores lying with it to the credit of the company cannot be upheld - thus directing NSEIL to remit to the OL the sum of Rs. 1.10 crores together with interest, if any accrued thereon within a period of four weeks from today. - CO.APPL.(C) No. 4 of 2011, Co. Appl. 401 of 2012 in Co. Pet. No. 42 of 2009 - - - Dated:- 23-1-2013 - S. MURALIDHAR, J. Petitioners : Mr. Ashish Makhija, Advocate for Official Liquidator Respondent : Mr. Sanjay Bhatt, Advocate Mr. Vibhor Garg, Advocate for ex-Directors with ex-Director Mr. J.C. Gupta in person. Mr. Ashish Makhija and Mr. S.P. Singh, Advocates for OL. Mr. Ramesh Ajmani, Advocate for SFIO with Mr. Dharamvir Singh, Dy. Director SFIO. ORDER 1. Co. Appl. (C) 4 of 2011 is an application by the Official Liquidator ( OL ) under Section 446 of the Companies Act, 1956 ( Act ) seeking a direction to the Respondent, National ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Defaulters Committee of NSEIL is required to deal with the money in accordance with Byelaw 23 of ChapterCO. XII of NSEIL byelaws. Under Rule 20(f) of NSEIL Rules, the provision of Chapter-XII of NSEIL byelaws pertaining to default becomes applicable to a trading member expelled from NSEIL as if such trading member has been declared a defaulter. Consequently, when a trading member is declared as a defaulter or is expelled, the Defaulters Committee calls in and realizes the security deposit in any form lying to the credit of the defaulter and recovers such sum. The assets of the trading member are then dealt with by the Defaulters Committee under Byelaw 23 of Chapter- XII of NSEIL byelaws. 6. The company was expelled from trading membership by NSEIL with effect from 27th July 2009 in terms of Chapter-IV of NSEIL Rules. The case of NSEIL is that consequent thereto, the amounts lying in the Defaulters Committee account has to be dealt with only by that Committee in accordance with the provisions of Chapter-XII of the NSEIL byelaws to be distributed in the order of priority as laid down in Byelaw 23. 7. NSEIL points out that pursuant to the proceedings instituted by one of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the amount lying in the account of its Defaulters Committee be retained with it and not to be asked to be remitted to the OL in the winding up proceedings. On the contrary, the case of the OL is that once the winding up order has been passed by the Court appointing the OL as PL, the property has to be dealt with only by the OL. 11. Mr. Sanjay Bhatt, learned counsel for NSEIL, submits that Section 456 of the Act envisages the PL taking into custody all the property, effects and actionable claims to which the company is or appears to be entitled and that this did not include the deposit placed by the company with NSEIL which now vests with the Defaulters Committee. He laid emphasis on the words is or appears to be entitled following the words property, effects and actionable claims , to urge that the sum of Rs. 1.10 crores was not an amount to which the company is entitled. He submitted that even in relation to the claims by the secured creditors, DRT-II accepted the plea of NSEIL that the aforementioned amount would not be available for realisation by the secured creditors. Reliance is placed on the decisions in Bombay Stock Exchange v. Jaya I. Shah AIR 2004 SC 55 and Colle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ory flavor . There was however no occasion for the Court to deal with the question whether such rules, byelaws and the regulations would override the provisions of the Act. In the said decision, the Court was dealing with the scope of the powers of the Defaulters Committee. It was held that the vesting of the assets of the defaulters in the Defaulters Committee was not absolute, as the Defaulters Committee was merely a trustee holding the said amounts vested in it for the benefit and on account of creditor members. The said decision does not deal with the issue whether notwithstanding the winding up of a company which happens to be the trading member and the appointment of PL, the deposits made by such company with NSEIL would still be dealt with only by the Defaulters Committee. 16. In Collector of Customs v. Dytron (India) Ltd., the Calcutta High Court dealt with the issue of the right of Customs authorities to claim payment of dues and other charges in respect of the goods imported by a company which had subsequently gone into liquidation. The Court discussed the provisions of the Customs Act, 1962 as well as of the Act. It was that unless and until statutory dues of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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