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TMI Blog2015 (4) TMI 886X X X X Extracts X X X X X X X X Extracts X X X X ..... e to the Bank. We directed so when we noticed, others were paid in ad hoc to the total exclusion of the Syndicate Bank. Official Liquidator paid only poultry a sum of ₹ 8 lakhs. When we asked Mr. Tilak Bose to explain, he would contend, in absence of appropriate papers, the Official Liquidator could not calculate the interest over the claim amount and thus they made prorata payment taking the claim of the Bank to the extent of ₹ 20 lakhs only. We are not sure as to whether they would use the same yardstick once again while making payment to the other creditors. We would humbly request the learned Company Judge to look into the affairs of the office of the Official Liquidator particularly ensuring impartiality. We observe so as we find, although the Official Liquidator was an officer appointed by the Central Government, he would enjoy his office and act strictly as per the direction of the learned Company Judge in his administrative capacity. - Decided partly in favour of appellant. - A.P.O. No. 168 of 2014, BIFR 52 Of 1988 - - - Dated:- 17-4-2015 - Ashim Kumar Banerjee And Shivakant Prasad JJ. For the Appellant : Mr. Rajsekhar Mantha, Senior Advocate, Ms. Gopa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bank wherein the learned Company Judge set aside the earlier settlement. We find from the record, IDBI got ad hoc payment of ₹ 50 lakhs, IFCI ₹ 20 lakhs and Standard and Chattered Bank ₹ 15 lakhs. However, the Syndicate Bank was not paid a single furthering as would appear from the page 180. The Official Liquidator also could not give any plausible explanation as to how those payments were made to the exclusion of Syndicate Bank. The Official Liquidator in its report would contend, the Bank did not make any claim to the extent, it had any charge on the land and building. Surprisingly, the learned advocate appearing for the other financial institutions namely, IDBI, IFCI appeared before the learned Company Judge and pointed out that the claim of the Syndicate Bank over the security was restricted to ₹ 20 lakhs that was not brought to the notice of the Official Liquidator. His Lordship set aside the earlier settlement and directed resettlement. The order was passed in absence of the Bank, no notice was ever served upon the Syndicate Bank. The Bank came to know from the letter of the Official Liquidator and immediately they objected to the same. The Court also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the letter of the other financial institutions through the lead institution being IFCI appearing at pages 293-295 and the Certificate of Registration appearing at page 296-299. The other financial institutions would contend, they did not accord their consent and there was no proper registration of charge. Hence, the Bank was not entitled to their claim. The learned Judge very correctly recorded the entire incident and noticed the mischief done at someone s behest that would directly favour the other secured creditors particularly IFCI, IDBI group to the exclusion of the Bank. However, the learned Judge was of the view, there was no evidence of pari-passu charge in favour of the Bank or any consent given by the other institutions. The leaned Judge also considered Section 48 of the Transfer of Property Act and observed, in absence of consent from each of the first charge holders, the findings of the Official Liquidator could not be interfered with. The learned Judge imposed heavy cost on IFCI, IDBI and permitted those financial institutions to recover such sum from their counsel if they so like. Being aggrieved, Bank filed the appeal. CONTENTIONS: Mr. Rajsekhar Mantha, learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hoc payments were received by the financial institutions in terms of the order of the Court and neither the Official Liquidator nor the secured creditors would have any hand in it. The parri-passu charge that the secured creditors would be having was as per the deposit of Title Deeds and compliance of the requirement in law. Section 48 of the Transfer of Property Act would not permit one of the creditors to claim better right than the others on the basis of the modified charge in absence of the consent being obtained from the other secured creditors who were ranking parri-passu with them. He would rely upon the Apex Court decision in the case of ICICI Bank Limited Vs. Sidco Leathers Limited and Others reported in 2006 Volume-X Supreme Court Cases Page-452. Appearing for the Official Liquidator, Mr. Tilak Bose, learned Senior Counsel would also support Mr. Sur on Section 48 of the Transfer of Property Act and its interpretation thereof. He would admit differential treatment being meted out by the Official Liquidator, however, he would contend, the original settlement of claim was not having any support of law. He would draw our attention to the Certificate of Charge that would a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t this stage, that would be too much and it would be a dishonest stand on the part of the Public Sector Undertaking to defraud another Public Sector Undertaking that the Court of law cannot be a mere onlooker. It is not a case where a rival claim is being made by a secured creditor over and above the other one on the strength of the increased security without compliance of the provisions of the Section 48. Mr. Sur relied upon in the case of ICICI Bank Limited Vs. Sidco Leathers Limited and Others reported in 2006 Volume-X Supreme Court Cases Page-452. He would rely upon paragraphs 17, 40, 41 and 49. In that case, the Punjab National Bank granted loan to the company knowing that the ICICI Bank had a first charge. In the instant case, the Syndicate Bank was having the charge over the assets to the extent of 20 lakhs. However, the extended financial support was given at the direction of BIFR a statutory authority and that too, with concurrence from all the financial institutions particularly IFCI group that would be apparent from the said order dated September 24, 1991. Hence, the said decision would be of no help to us. Section 48 would provide when a person purports to create ..... X X X X Extracts X X X X X X X X Extracts X X X X
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